AIRGYM TERMS AND CONDITIONS
Last Modified: July 23, 2018
Please read these Terms and Conditions carefully as they contain important information about your legal rights, remedies and obligations. By using the Services, you agree to comply with and be bound by these Terms and Conditions.
Please note: Section 22 of these Terms and Conditions contains an arbitration clause and class action waiver that applies to all AirGym Members. This provision applies to all disputes with AirGym and affects how disputes with AirGym are resolved. By accepting these Terms and Conditions, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
1. Acceptance of the Terms and Conditions
These terms and conditions constitute a legally binding agreement (“Agreement”) and are entered into by and between You and AirGym (“Company”, “we” or “us”). The following terms and conditions, together with any documents they expressly incorporate by reference (collectively, these “Terms and Conditions”), govern your access to and use of the AirGym website including any content, functionality and services offered on or through the AirGym website (the “Website”) or the AirGym mobile, tablet and other smart device applications and application program interfaces (collectively, “Application”) and all associated services (collectively, the “Services”). The Website, Application and AirGym Services together are hereinafter collectively referred to as the “AirGym Platform” or “Platform”. These Terms of Service apply to you whether you use the AirGym Platform as a guest or a registered user.
Our Services are offered and available to users who are 18 years of age or older and reside in the United States or any of its territories or possessions. By using our Services, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all the foregoing eligibility requirements. If you do not meet all these requirements, you must not access or use our Services.
2. Changes to the Terms and Conditions
We may revise and update these Terms and Conditions from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of our Services thereafter. However, any changes to the dispute resolution provisions set forth in Governing Law and Jurisdiction will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on our Services.
Your continued use of our Services following the posting of revised Terms and Conditions means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.
3.The AirGym Services
AirGym enables Platform Users (Owners, Members, and Trainers) to connect in its online marketplace to transact business between those registered users who seek to provide workout space on their personal properties and those registered users seeking to book such workout space for themselves or their clients.
AirGym does not own, create, sell, resell, provide, control, manage, offer, deliver or supply any listings or services published on the Air Gym Platform. Bookings made through the AirGym Platform are a direct contract between the respective registered users. AirGym is not and does not become a party to any contractual relationship formed between Platform Users for services booked through the AirGym Platform. AirGym is not an agent for any Platform User.
4. Accessing our Services and Account Security
We reserve the right to withdraw or amend our Services, and any service or material we provide on our Services, in our sole discretion without notice. We will not be liable if for any reason all or any part of our Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts or the entirety of our Services, to users, including registered users.
You are responsible for:
- Making all arrangements necessary for you to have access to our Services.
- Ensuring that all persons who access our Services through your internet connection are aware of these Terms and Conditions and comply with them.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to our Services or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms and Conditions.
5. Intellectual Property Rights
Our Services and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
These Terms and Conditions permit you to use our Services for your personal use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Services, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of our Services for your own personal, noncommercial use and not for further reproduction, publication or distribution.
- If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, noncommercial use, provided you agree to be bound by our end user license agreement for such applications.
- If we provide social media features with certain content, you may take such actions as are enabled by such features.
You must not:
- Modify copies of any materials from this site.
- Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this site.
If you wish to make any use of material on our Services other than that set out in this section, please address your request to:[email protected]
If you print, copy, modify, download or otherwise use or provide any other person with access to any part of our Services in breach of the Terms and Conditions, your right to use our Services will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to our Services or any content on our Services is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of our Services not expressly permitted by these Terms and Conditions is a breach of these Terms and Conditions and may violate copyright, trademark and other laws.
The Company name, the Company logo, and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on our Services are the trademarks of their respective owners.
7. Prohibited Uses
You may use our Services only for lawful purposes and in accordance with these Terms and Conditions. You agree not to use our Services:
- In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.
- To send, knowingly receive, upload, download, use or reuse any material which does not comply with the Content Standards set out in these Terms and Conditions.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
- To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of our Services, or which, as determined by us, may harm the Company or users of our Services or expose them to liability.
Additionally, you agree not to:
- Use our Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of our Services, including their ability to engage in real time activities through our Services.
- Use any robot, spider or other automatic device, process or means to access our Services for any purpose, including monitoring or copying any of the material on our Services.
- Use any manual process to monitor or copy any of the material on our Services or for any other unauthorized purpose without our prior written consent.
- Use any device, software or routine that interferes with the proper working of our Services.
- Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of our Services, the server on which our Services is stored, or any server, computer or database connected to our Services.
- Attack our Services via a denialofservice attack or a distributed denialofservice attack.
- Otherwise attempt to interfere with the proper working of our Services.
8. User Contributions
Our Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through our Services.
All User Contributions must comply with the Content Standards set out in these Terms and Conditions.
Any User Contribution you post to the site will be considered nonconfidential and nonproprietary. By providing any User Contribution on our Services, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purpose/according to your account settings.
You represent and warrant that:
- You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of our Services.
9. Specific Terms for Trainers
The following terms are specifically for Trainers who utilize the Air Gym Platform:
- Members will be able to find Trainers on the App, during the launch. Trainers will be the ones who will book the times for their clients and or members who find the Trainers on the App.
- Trainers will need to check their certifications upon registration.
- Trainers may not bring a client to an AirGym without the client downloading the app and agreeing to the Terms and Conditions.
- Trainers will pay AirGym Owners through booking a gym via the AirGym Platform..
- Trainers will be paid directly by their current clients as well as new AirGym clients. Air Gym will not charge any fees related to the Trainer/Client relationship.
- Trainers may not stack” clients. If an AirGym Owner has 4 slots and the Trainer wants to bring in 4 clients, the Trainer must pay the Owner’s per hour rate times 4 people.
- Trainers may bring their own equipment to use at an AirGym but cannot attach, adhere, fasten to AirGym Owners equipment, walls, ceiling, etc… It is recommended and encouraged the Trainers discuss any additional equipment they intend to bring and use at an AirGym with the AirGym owner prior to arriving at the gym.
- Trainers are fully responsible for ensuring all clients are fit enough and in the physical condition to be working out.
- No one under the age of 18 is allowed to work out through AirGym, even with Trainers.
10. Monitoring and Enforcement; Termination
We have the right to:
Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms and Conditions, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of our Services or the public or could create liability for the Company.
Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of our Services.
Terminate or suspend your access to all or part of our Services for any or no reason, including without limitation, any violation of these Terms and Conditions.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through our Services. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY OR LAW ENFORCEMENT AUTHORITIES.
However, we do not undertake to review material before it is posted on our Services and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
11. Content Standards
These content standards apply to all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Contributions must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
Impersonate any person or misrepresent your identity or affiliation with any person or organization.
Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
12. Copyright Infringement
If you believe that any User Contributions violate your copyright, please provide notice to us at [email protected]. It is the policy of the Company to terminate the user accounts of repeat infringers.
Reliance on Information Posted
The information presented on or through our Services is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to our Services, or by anyone who may be informed of any of its contents.
Our Services may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
13. Changes to our Services
14. Information About You and Your Visits to our Services
15. Online Purchases and Other Terms and Conditions
All purchases through our site or other transactions for the sale of goods or services or information formed through our Services or because of visits made by you are governed by our Payment Policy which is hereby incorporated into these Terms and Conditions.
Additional terms and conditions may also apply to specific portions, services or features of our Services. All such additional terms and conditions are hereby incorporated by this reference into these Terms and Conditions.
16. Linking to our Services and Social Media Features
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part without our express written consent.
Our Services may provide certain social media features that enable you to:
- Link from your own or certain third-party SERVICES to certain content on our Services.
- Send emails or other communications with certain content, or links to certain content, on our Services.
- Cause limited portions of content on our Services to be displayed or appear to be displayed on your own or certain third-party SERVICES.
You may use these features solely as they are provided by us, and solely with respect to the content they are displayed with and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:
- Establish a link from any website that is not owned by you.
- Cause our Services or portions of it to be displayed, or appear to be displayed by, for example, framing, deep linking or inline linking, on any other site.
- Link to any part of our Services other than the homepage.
- Otherwise take any action with respect to the materials on our Services that is inconsistent with any other provision of these Terms and Conditions.
Our Services from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms and Conditions.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to cease. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
17. Links from our Services
If our Services contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party SERVICES linked to our Services, you do so entirely at your own risk and subject to the terms and conditions of use for such SERVICES.
18. Geographic Restrictions
The owner of our Services is based in the state of Tennessee in the United States. We provide our Services for use only by persons located in the United States. We make no claims that our Services or any of its content is accessible or appropriate outside of the United States. Access to our Services may not be legal by certain persons or in certain countries. If you access our Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
19. Disclaimer of WarrantiessIF YOU CHOOSE TO USE THE AIRGYM PLATFORM, AIRGYM SERVICES OR CONTENT SERVICES, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE AIRGYM PLATFORM, AIRGYM SERVICES, AND CONTENT SERVICES IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF OUR SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT OUR SERVICES, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR SERVICES WILL BE ACCURATE, RELIABLE, ERROR FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT OUR SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH OUR SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
YOU AGREE THAT YOU HAVE HAD WHATEVER OPPORTUNITY YOU DEEM NECESSARY TO INVESTIGATE THE AIRGYM SERVICES, LAWS, RULES, OR REGULATIONS THAT MAY BE APPLICABLE TO YOUR LISTINGS AND/OR OWNER SERVICES YOU ARE RECEIVING AND THAT YOU ARE NOT RELYING UPON ANY STATEMENT OF LAW OR FACT MADE BY AIRGYM RELATING TO A LISTING.
IF WE CHOOSE TO CONDUCT IDENTITY VERIFICATION OR BACKGROUND CHECKS ON ANY MEMBER, TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, THAT SUCH CHECKS WILL IDENTIFY PRIOR MISCONDUCT BY A MEMBER OR GUARANTEE THAT A MEMBER WILL NOT ENGAGE IN MISCONDUCT IN THE FUTURE.
YOU AGREE THAT SOME OWNER SERVICES MAY CARRY INHERENT RISK, AND BY PARTICIPATING IN THOSE OWNER SERVICES, YOU CHOOSE TO ASSUME THOSE RISKS VOLUNTARILY. FOR EXAMPLE, SOME OWNER SERVICES MAY CARRY RISK OF ILLNESS, BODILY INJURY, DISABILITY, OR DEATH, AND YOU FREELY AND WILLFULLY ASSUME THOSE RISKS BY CHOOSING TO PARTICIPATE IN THOSE OWNER SERVICES. YOU ASSUME FULL RESPONSIBILITY FOR THE CHOICES YOU MAKE BEFORE, DURING AND AFTER YOUR PARTICIPATION IN AN OWNER SERVICE. IF YOU ARE BRINGING A MINOR AS AN ADDITIONAL MEMBER, YOU ARE SOLELY RESPONSIBLE FOR THE SUPERVISION OF THAT MINOR THROUGHOUT THE DURATION OF YOUR OWNER SERVICE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO RELEASE AND HOLD HARMLESS AIRGYM FROM ALL LIABILITIES AND CLAIMS THAT ARISE IN ANY WAY FROM ANY INJURY, DEATH, LOSS OR HARM THAT OCCURS TO THAT MINOR DURING THE OWNER SERVICE OR IN ANY WAY RELATED TO THE OWNER SERVICE.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
20. Limitation on Liabilitys
UNLESS YOU RESIDE IN THE EU, YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE AIRGYM PLATFORM AND COLLECTIVE CONTENT, YOUR PUBLISHING OR BOOKING OF ANY LISTING VIA THE AIRGYM SERVICES, YOUR USE OF ANY GYM, OR ANY OTHER INTERACTION YOU HAVE WITH OTHER MEMBERS WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER AIRGYM NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE AIRGYM SERVICE OR CONTENT SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS, (II) FROM THE USE OF OR INABILITY TO USE THE AIRGYM SERVICES OR CONTENT SERVICES, (III) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER MEMBERS OR OTHER PERSONS WITH WHOM YOU COMMUNICATE, INTERACT OR MEET WITH AS A RESULT OF YOUR USE OF THE AIRGYM PLATFORM, OR (IV) FROM YOUR PUBLISHING OR BOOKING OF A LISTING, INCLUDING THE PROVISION OR USE OF A LISTING’S OWNER SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AIRGYM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE OWNERS PURSUANT TO THESE TERMS OR AN APPROVED PAYMENT REQUEST UNDER THE AIRGYM OWNER GUARANTEE, IN NO EVENT WILL AIRGYM’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE AIRGYM PLATFORM INCLUDING, BUT NOT LIMITED TO, FROM YOUR PUBLISHING OR BOOKING OF ANY LISTINGS VIA THE AIRGYM PLATFORM, OR FROM THE USE OF OR INABILITY TO USE THE AIRGYM PLATFORM OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY OWNER SERVICE, OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE FOR BOOKINGS VIA THE AIRGYM PLATFORM AS A MEMBER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE AN OWNER, THE AMOUNTS PAID BY AIRGYM TO YOU IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS ($100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AIRGYM AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU RESIDE OUTSIDE OF THE U.S., THIS DOES NOT AFFECT AIRGYM’S LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM ITS NEGLIGENCE, NOR FOR FRAUDULENT MISREPRESENTATION, MISREPRESENTATION AS TO A FUNDAMENTAL MATTER OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
IF YOU RESIDE IN THE EU, AIRGYM IS LIABLE UNDER STATUTORY PROVISIONS FOR INTENT AND GROSS NEGLIGENCE BY US, OUR LEGAL REPRESENTATIVES, DIRECTORS, OR OTHER VICARIOUS AGENTS. THE SAME APPLIES TO THE ASSUMPTION OF GUARANTEES OR ANY OTHER STRICT LIABILITY, OR IN CASE OF A CULPABLE INJURY TO LIFE, LIMB, OR HEALTH. AIRGYM IS LIABLE FOR ANY NEGLIGENT BREACHES OF ESSENTIAL CONTRACTUAL OBLIGATIONS BY US, OUR LEGAL REPRESENTATIVES, DIRECTORS, OR OTHER VICARIOUS AGENTS. ESSENTIAL CONTRACTUAL OBLIGATIONS ARE SUCH DUTIES OF AIRGYM IN WHOSE PROPER FULFILMENT YOU REGULARLY TRUST AND MUST TRUST FOR THE PROPER EXECUTION OF THE CONTRACT, BUT THE AMOUNT SHALL BE LIMITED TO THE TYPICALLY OCCURRING FORESEEABLE DAMAGE. ANY ADDITIONAL LIABILITY OF AIRGYM IS EXCLUDED.
You agree to defend, indemnify and hold harmless the Company, its affiliates, subsidiaries, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or connected with (i) your breach of these Terms or our Policies or Standards, (ii) your improper use of the AirGym Services, (iii) your interaction with any Member, use of a Gym or other Owner Service, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, participation or use, or (iv) your breach of any laws, regulations or third party rights.
22. Governing Law and Jurisdiction
All matters relating to our Services and these Terms and Conditions and any dispute or claim arising therefrom or related thereto (in each case, including non- contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Tennessee without giving effect to any choice or conflict of law provision or rule (whether of the State of Tennessee or any other jurisdiction).
Any legal suit, action or proceeding arising out of, or related to, these Terms and Conditions or our Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Tennessee [in each case located in the City of Franklin and County of Williamson although we retain the right to bring any suit, action or proceeding against you for breach of these Terms and Conditions in your country of residence or any other relevant country. You waive all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
This Dispute Resolution and Arbitration Agreement shall apply if you (i) reside in the United States; or (ii) do not reside in the United States but bring any claim against AirGym in the United States (to the extent not in conflict with the Governing Law and Jurisdiction section above)..
Overview of Dispute Resolution Process. AirGym is committed to participating in a consumer-friendly dispute resolution process. To that end, these Terms provide for a two-part process for individuals to whom this Section applies: (1) an informal negotiation directly with AirGym’s customer service team, and (2) a binding arbitration administered by the American Arbitration Association (“AAA”) using its specially designed Consumer Arbitration Rules (as modified by this Section). Specifically, the process provides:
- Claims can be filed with AAA online (www.adr.org)
- Arbitrators must be neutral, and no party may unilaterally select an arbitrator;
- Arbitrators must disclose any bias, interest in the result of the arbitration, or relationship with any party;
- Parties retain the right to seek relief in small claims court for certain claims, at their option;
- The initial filing fee for the consumer is capped at $200;
- The consumer gets to elect the hearing location and can elect to participate live, by phone, video conference, or, for claims under $25,000, by the submission of documents;
- The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and AirGym each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. We will contact you at the email address you have provided to us; you can contact AirGym’s customer service team by emailing us. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the AAA and the written Demand for Arbitration (available at www.adr.org) provided to the other party, as specified in the AAA Rules.Agreement to Arbitrate. You and AirGym mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement or interpretation thereof, or to the use of the AirGym Services, the Owner Services, or the Content Services (collectively, “Disputes”) will be settled by binding arbitration (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and AirGym agree that the arbitrator will decide that issue.
Exceptions to Arbitration Agreement. You and AirGym each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
Arbitration Rules and Governing Law. This Arbitration Agreement evidences a transaction in interstate commerce and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. The arbitration will be administered by AAA in accordance with the Consumer Arbitration Rules (the “AAA Rules“) then in effect, except as modified here. The AAA Rules are available at www.adr.org or by calling the AAA at 1–800–778–7879.
Modification to AAA Rules – Arbitration Hearing/Location. In order to make the arbitration most convenient to you, AirGym agrees that any required arbitration hearing may be conducted, at your option, (a) in the county where you reside; (b) in San Francisco County; (c) in any other location to which you and AirGym both agree; (d) via phone or video conference; or (e) for any claim or counterclaim under $25,000, by solely the submission of documents to the arbitrator.
Modification of AAA Rules – Attorney’s Fees and Costs. You may be entitled to seek an award of attorney fees and expenses if you prevail in arbitration, to the extent provided under applicable law and the AAA rules. Unless the arbitrator determines that your claim was frivolous or filed for the purpose of harassment, AirGym agrees it will not seek, and hereby waives all rights it may have under applicable law or the AAA rules, to recover attorneys’ fees and expenses if it prevails in arbitration.
Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.Jury Trial Waiver. You and AirGym acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.No Class Actions or Representative Proceedings. You and AirGym acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and AirGym both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
Severability. Except as provided in Section 19.11, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
Changes. Notwithstanding the provisions of Section 3 (“Modification of these Terms”), if AirGym changes this Section 19 (“Dispute Resolution and Arbitration Agreement”) after the date you last accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within thirty (30) days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of AirGym’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and AirGym in accordance with the provisions of the “Dispute Resolution and Arbitration Agreement” section as of the date you last accepted these Terms (or accepted any subsequent changes to these Terms).
Survival. Except as provided in Section 19.12 and subject to Section 15.8, this Section 19 will survive any termination of these Terms and will continue to apply even if you stop using the AirGym Platform or terminate your AirGym Account.
24. Limitation on Time to File Claims
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE Terms and Conditions OR OUR SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
25. Waiver and Severability
No waiver of by the Company of any term or condition set forth in these Terms and Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms and Conditions will continue in full force and effect.
26. Entire Agreement
27. Your Comments and Concerns
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