Last updated: January 9th, 2023
These Terms of Service (“Terms”) apply to your access to and use of the Service (as defined below) and form a legally binding contract between you and The Pump LLC (“The Pump,” “we,” “our,” and/or “us”) related to the Service and any other interactions you may have with us.
Our “Service” currently includes “The Pump” branded app designed for you to download, access and use on your mobile phone (the “App”); the thepump.app website, together with all and any other websites, apps, digital properties and platforms on which these Terms are referenced or made available; as well as and all digital fitness, training, wellness and other Content (as defined in Section 2), features, functionalities, services we may make available through any of the foregoing.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, INCLUDING YOUR AGREEMENT TO MANDATORY ARBITRATION, WAIVER OF CLASS RELIEF AND WAIVER OF A RIGHT TO A JURY TRIAL (AS SET FORTH IN SECTION 13) AND YOUR ASSUMPTION OF RISK, RELEASE AND WAIVER OF LIABILITY (AS SET FORTH IN SECTIONS 10 AND 11).
1 | ACCESSING AND USING THE SERVICE
1.1 Eligibility. The Service is intended for use by adults, and you must be at least 18 years old (or the age of majority, if different in the jurisdiction where you live) to purchase a Services Membership. If you are 16 or 17 years old, you may access and use the Service solely with the consent of your parent or guardian and then only under their direct supervision. To be eligible to use the Service you must also be able to make the health-related representations set forth in Section 10.2 below.
1.2 Service Membership. All subscriptions to the Service (a “Service Membership”), are subject to the Additional Terms: Service Memberships below. Please review these Additional Terms as they contain important information about your Service Membership, including details concerning payment, automatic renewal and cancellation.
1.3 Your Account. You must create and log-in to an account for the Service (an “Account”) in order to access and use many of the Service’s features, functionalities and Content. In some instances, the right to create an Account, and/or to access and use certain aspects of the Service, may be limited to individuals who have a Service Membership. You must provide accurate and complete information when creating an Account and ensure your information is kept current. You may have an option to add a profile picture or alias to your Account, and your picture/alias must comply with our Acceptable Use Policy in Section 3.3 below and may be removed by The Pump in its sole discretion. You are solely responsible for maintaining the confidentiality of your Account credentials and you hereby agree to be fully responsible and liable for all usage, activities and purchases that occur under your Account, whether authorized by you or not. If you know or suspect your Account or password may have been compromised, you must contact us immediately and change your password. You may not allow your Account to be used by any other person. The Pump reserves the right to, in its sole discretion and for any reason, deny the creation of, suspend access to, or terminate any Account, and take steps to block users, including those that have been terminated, from accessing or re-accessing the Service.
1.5 Limited Right to Use the Service. The Service is licensed, not sold, to you. Subject to your acceptance of and compliance with these Terms and only for so long as you are permitted by us to access and use the Service, The Pump grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Service, but only for your personal and non-commercial use and only on personal devices, applications and equipment that you own or have a right to use and through which we have made the Service available.
Except as otherwise expressly authorized in these Terms, you agree not to:
- Use the Service for any commercial purpose or for the benefit of any other person or entity, including by offering public performances or screenings of Content or by selling, reselling, renting, leasing, hosting or otherwise commercially exploiting the Service or any Content or other portion therein.
- Copy, reproduce, duplicate, archive, store (other than standard browser caching), download (other than to a personal device through an authorized app marketplace), publish, license, distribute, publicly perform, publicly display, frame, stream, modify, translate or make derivative works of the Service or any Content or portion thereof, by any means.
- Reverse engineer, decompile, disassemble, or otherwise attempt to access the source code for the Service or any portion thereof, or access, use or exploit the Service or any portion thereof in order to build or develop a competitive or similar product or service.
- Remove, alter, circumvent, deactivate, thwart or otherwise interfere with any content protection mechanisms or access control mechanisms (including territorial restrictions) in or otherwise used to protect the Service.
- Attempt to gain unauthorized access to the Service or any Account or portion thereof or any related networks, systems, servers or equipment.
- Use any name, image, likeness, trademark, logo or other materials, or any meta tags or metadata utilizing any of the foregoing, of The Pump or its licensors, sponsors or any affiliated individuals or representatives of the Pump Parties (defined in Section 9) without our express written permission; or modify, alter, remove or obscure any copyright, trademark, reservation of rights or other proprietary notice on or within the Service or any Content.
- Use any bots, robots, spiders, crawlers, or similar data mining, gathering or extraction tools or code, whether automated, programmed or manual, to access, use, copy from, or otherwise interact with the Service or to probe, scan or test the vulnerability of the Service and any related networks, systems, servers and equipment.
- Interfere with or manipulate the Service, including by uploading or otherwise disseminating any virus, malware, ransomware, spyware, worms, or other software or code malicious or disruptive code; or by taking take any action that imposes or is designed to impose an unreasonable burden or load on the Service or any related systems, networks, servers, or equipment.
- Export the Service or any Content in violation of any applicable laws or regulations, including without limitation United States export laws and regulations.
- Use the Service in violation of any applicable third-party terms and conditions, any applicable laws or regulations or for any otherwise unintended, illegal or unlawful purposes.
Any violation of these Terms or other unauthorized use of the Services by you, or otherwise under your Account or on your computer, device or equipment, will immediately terminate the limited rights granted to you under these Terms, and such termination will be without prejudice to any other right or remedy The Pump or any other person may have under applicable law or in equity. The Pump reserves the right to, in its sole discretion, exercise all rights and remedies and take any and all steps available to The Pump, under law or in equity, including reporting you to and consulting and cooperating with law enforcement or governmental officials and seeking other legal or equitable remedies.
2 | OWNERSHIP
As between you and The Pump, The Pump owns all right, title and interest, including all copyright, trademark, patent, rights of publicity and other intellectual property and proprietary rights, embodied in or relating to the Service, including the App and all content that is displayed on, made available through or otherwise included in the Service, including all visual, audiovisual and audio materials, sound recordings, musical compositions, visual and graphical interfaces, images, graphics, designs, compilations, interactive features, text, works of authorship, trademarks, service marks, trade names, logos, icons, data, information, code, software, products and software, regardless of whether registered or unregistered, and any combinations and compilations thereof, but excluding any User Content (collectively, the “Content”), and all other elements thereof, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of each aspect of the Service. No act of downloading, installing, or otherwise using, the Service or any Content or portion thereof will transfer any title, interest or right in or to the foregoing to you. The Service and Content are protected by applicable copyright, trademark and other applicable intellectual property rights and laws and constitute valuable intellectual property of The Pump and its licensors. The Pump and its licensors hereby expressly reserve all rights not expressly granted herein, The Pump’s licensors who own any of the Content are intended beneficiaries of these Terms and shall have the right to enforce these Terms directly against you.
3 | USER CONTENT AND INTERACTIONS
3.2 Ownership. You continue to own any User Content that you upload, post, and/or share to or through the Service; however, by uploading, posting, and/or sharing User Content, you grant to The Pump and its affiliates, licensees, employees, contractors, providers, agents, successors and assigns a non-exclusive, perpetual, irrevocable, royalty-free and worldwide license to use, host, store, transfer, reproduce, modify, disclose, publish, publicly display, publicly perform, distribute, modify, sublicense, and create derivative works of your User Content (together with your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information, within your User Content), in whole or in part, for any purpose in connection with the Service, in any media or channel, without restriction, liability, notice or compensation to you. The Pump may, but is not obligated to, provide attribution to you, subject to any privacy settings in your Account, when using your User Content. You hereby waive any “moral rights,” rights of publicity or rights or privacy you may have in connection with your User Content and agree not to enforce any of the foregoing rights against The Pump Entities.
3.3 Acceptable Use. As a condition of your right to access and use the Service, you hereby represent and warrant to The Pump that you and your User Content and your interactions with other users:
- Will be suitable for presentation in a public forum and will not contain, any personally identifiable information for you or any person.
- Will not bully, threaten, abuse, harass, degrade or mock any other user and will not include, depict or promote any threats to any person, place, business or group or any damage to or theft of property.
- Will not include, depict, or promote any content that could reasonably be considered as libelous, slanderous, defamatory, profane, obscene, pornographic, sexually explicit, lewd, or otherwise inappropriate or that contains or uses any symbols, words or slurs that are widely considered offensive to individuals of a certain race, gender, ethnicity, religion, sexual orientation or socioeconomic group.
- Will not include, depict or promote any violence, abuse, cruelty to animals, use of illegal drugs, excessive or inappropriate use of alcohol or legal drugs, or any other activity or behavior that is criminal, illegal, unreasonably dangerous or reckless.
- Will not include, depict or promote any advertising or commercial activity, offer products or services for sale, contain a sweepstake or contest, or otherwise consist of unsolicited advertising, spam or junk or bulk messages. You may not use the Service to solicit or collect personally identifiable information from or about any other users.
- Will be owned by you (or licensed from the owner to you in writing in a manner that permits you to use, upload, post, share and grant licenses to such User Content) and will not infringe, misappropriate or otherwise violate any patent, trademark, copyright, right of publicity, or other intellectual property, privacy, publicity or proprietary right of The Pump or any third person.
- Will not impersonate any other individual, falsely state or misrepresent your professional or other affiliation The Pump or with any other person, or otherwise be misleading, inaccurate, or in violation of these Terms or any applicable law.
The Pump does not control and has no obligation to monitor the Service, any User Content, or any user’s use of the Service and/or interactions with other users, but reserves all rights to do the foregoing at any time and for any purpose, without any notice to you. The Pump further reserves all rights to, but has no obligation to: (1) refuse to post, or remove, modify or otherwise regulate, any User Content that we determine in our sole discretion does not comply with these Terms or is otherwise objectionable and to require you to provide proof of your compliance with these Terms; (2) become involved in any disputes between you and other users and to take any other actions that we determine in our sole discretion are appropriate in connection therewith; and (3) disclose your User Content and/or any information provided to or through the Service or otherwise obtained during any such monitoring to law enforcement, governmental officials or other third parties, as necessary to satisfy any law, regulation or governmental request.
3.4 Feedback. We welcome general feedback, input, comments, reviews, notes, messages, suggestions or other communications (collectively, “Feedback”) regarding the Service. However, any Feedback you post, submit or otherwise provide to The Pump through the Service or otherwise will be treated as non-confidential and non-proprietary, and The Pump may freely use your Feedback, in perpetuity and without restriction, for any purpose, commercial or otherwise, and without liability, notice, acknowledgment or compensation to you. The Pump shall solely own any intellectual property rights arising out of or in connection with Feedback.
3.5 Unsolicited Ideas. While we appreciate your general Feedback, The Pump does not accept or consider any unsolicited ideas, confidential information or proprietary information or other Feedback that you do not wish The Pump to freely use, including ideas for new or improved products, services, apps, technologies, marketing, advertisements promotions or other services, products or offerings and any original creative materials such as stories, videos, computer code, images or artwork (all of the foregoing, collectively, “Unsolicited Ideas”), and therefore you agree not to post, submit or otherwise provide to The Pump, any Unsolicited Ideas. If, despite this policy, you nonetheless chose to post, submit, send or otherwise provide any Unsolicited Idea, by doing so you acknowledging and agreeing that: (1) you are not posting, submitting, sending or providing any confidential or proprietary information; (2) The Pump has no obligation to review or use the Unsolicited Idea or to keep it confidential; and (3) The Pump will consider the Unsolicited Idea as Feedback that may be freely used by The Pump, without liability, notice, acknowledgement or compensation to you, and you hereby agree to waive any and claims against The Pump in connection with the foregoing.
3.6 Copyright Infringement Policy. The Pump respects the intellectual property rights of others and expects you to do the same. Pursuant to the Digital Millennium Copyright Act (the “DMCA”), The Pump reserves the right, but not the obligation, to suspend, terminate or otherwise limit your use and access to the Service, in whole or in part, if we determine, in our sole and absolute discretion, that you are involved in infringing activity, including by uploading, posting or sharing User Content that is infringing, regardless of whether you are a first-time or repeat infringer, and regardless of whether the material or activity is ultimately determined to be infringing. The foregoing does not limit our ability to pursue any other remedies we may have to address any suspected infringement or infringing activity.
If you believe that any User Content on the Service infringes your copyright, or the copyright of anyone on whose behalf you are authorized to act, you may submit a written complaint to our designated copyright agent at: email@example.com. Your complaint must include all of the following: (1) identification of the copyrighted work(s) you claim is being infringed; (2) identification of the material that you claim is infringing and the URL or other sufficient information for The Pump to locate that material within the Service; (3) your email address, telephone number and mailing address; (4) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; (5) a statement that the information in your written complaint is accurate and that, under penalty of perjury, you are the copyright owner authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (6) a physical or electronic signature of the copyright owner or the person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
Please note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
4 | THIRD-PARTY FEATURES
The Service may enable you to use, link to or integrate with certain services, software, tools and products offered by our affiliates and/or other third parties, including other websites, apps, social media networks, equipment and wearable devices (collectively, “Third-Party Features”). By using or integrating with a Third-Party Feature, you agree that The Pump may transfer your data and information to and/or receive and use any data or information it receives from, that Third- Party Feature. Offering a Third-Party Feature does not constitute any endorsement by The Pump. The Pump does not control and is not responsible for any Third-Party Feature, for the legality, accuracy or appropriateness of any content, products, services, data, materials, or other materials on or available through any Third-Party Feature or for any practices, operations, business or persons associated with such Third-Party Feature. Your rights and obligations when accessing and using these Third-Party Features are governed by the terms and policies of those Third-Party Features, and we encourage you to carefully read those terms and policies of these Third-Party Features, as their practices may differ from ours. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO ACCESS, USE AND/OR INTEGRATE WITH ANY THIRD-PARTY FEATURE IS AT YOUR SOLE RISK. SUBJECT TO SECTION 12.4, THE PUMP MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY FEATURES OR THE CONTENTS, OFFERINGS, OPERATIONS OR PRACTICES THEREOF, AND HEREBY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES, LOSSES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF AND/OR INTEGRATION WITH ANY THIRD-PARTY FEATURES.
5 | AVAILABILITY AND CHANGES
5.1 Availability. We have no obligation to maintain or make available to you the Service, in whole or in part, nor do we have any obligation to provide you with any related maintenance or support services. In addition, we regularly make changes to the Service, and reserve the right to, in our sole discretion, render the Service, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify any aspect of the Service, including the Content available through the Service and the means and devices through which we make the Service available, at any time and for any or no reason, without notice or liability to you.
5.2 Test Features. We continually test new functionalities, services, options, initiatives, user interfaces, products and other features that we may incorporate into the Service. We reserve the right to, in our sole discretion, make test features available to you, or exclude you from any new feature testing, at any time and without notice or liability to you.
5.3 Changes to These Terms. We reserve the right to, in our sole discretion change these Terms, in whole or in part, at any time. We will post the revised Terms here, and changes will be effective immediately upon our posting. We may require that you accept any changed Terms (e.g., by clicking “I Accept” or other similar button) in order to continue accessing and using the Service. We will include a “Last Updated” date at the beginning of these terms, and it is your responsibility to check these Terms periodically for changes. By continuing to access or use the Service following the posting of any changes to these Terms, you are accepting and agreeing to be bound by such changed Terms.
7 | ADDITIONAL TERMS
Additional terms, policies, rules, instructions and/or guidelines (“Additional Terms”) may apply to the Service and your interactions with The Pump, regardless of whether or not they are expressly labeled as Additional Terms. By purchasing, accessing and/or using the Service, or otherwise interacting with The Pump, you agree to comply with all Additional Terms referenced or associated in connection therewith and are responsible for satisfying any eligibility or other requirements set forth in Additional Terms. All Additional Terms are hereby incorporated by reference into and made a part of these Terms.
8 | TERMINATION
You may terminate these Terms at any time by ceasing to access and use the Service and, where applicable, cancelling your Service Membership. If you subsequently decide to resume accessing and using, or re-subscribe to, the Service, you will again be bound by the then-current Terms.
Notwithstanding anything to the contrary in these Terms, The Pump reserves the right to, in its sole discretion, terminate these Terms, and/or otherwise terminate, suspend, restrict or block your access to and use of the Service, in whole or in part, at any time and without prior notice or liability to you, for any reason, including for any violation of these Terms or your failure or suspected failure to comply with any portion of these Terms. You acknowledge and agree that we shall have no liability or obligation to you as a result of any such termination, suspension, restriction or blocking. Termination of these Terms will be without limitation to any other rights or remedies that The Pump may have at law or in equity.
Upon any termination for any reason, your rights set forth herein will terminate and you must immediately cease all access to and use of the Service. You will no longer be authorized to access your Account, and we may, but have no obligation to, immediately delete all User Content and other data and information stored in or associated with your Account without notice or liability to you. All payment obligations to The Pump accrued prior to termination will survive termination, and any unpaid amounts will become immediately due and must be paid by you to The Pump. In addition, Sections 2, 3 and 8 through 14 of these Terms, and any other provision which by its nature is intended to survive, will survive termination.
9 | INDEMNIFICATION
To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless The Pump, its parents, subsidiaries and other affiliates, and each of its and their respective employees, officers, directors, contractors, owners, suppliers service providers, licensors, sponsors, agents, representatives, successors and assigns (all of the foregoing, together with The Pump, the “Pump Parties”) from and against any and all claims, demands, complaints, damages, losses, liabilities, judgments, fines, penalties, interest, fees, expenses and costs (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of or in connection with: (a) your use of the Service, including any use of the Service through your Account (with or without authorization your authorization) and any disputes or interactions between you and any other Service user; (b) your User Content, Feedback and Unsolicited Ideas, including any allegations of infringement or other violation of rights; and/or (c) your violation of these Terms. You agree that The Pump shall have exclusive control over the defense or settlement of any third-party Claims (without limiting your indemnification obligations with respect to that Claim) and that you cooperate with The Pump Parties in defending such Claims. You may not settle any Claims for which you are required to provide indemnification without The Pump’s prior written consent.
10 | HEALTH AND SAFETY RISKS
PLEASE READ THE FOLLOWING CAREFULLY AS IT DISCUSSES IMPORTANT RISKS TO YOUR HEALTH AND SAFETY, AS WELL AS YOUR ACCEPTANCE AND ASSUMPTION OF THOSE RISKS.
10.1 Health Disclaimers. The Pump is not a healthcare or medical provider. The Service and the Content, including any workouts, classes, exercises, regimens, plans, recommendations, instructor guidance, advice, information, nutritional plans, recipes or other materials contained, offered or discussed therein (the “Advice”), are provided for entertainment and informational purposes only; they do not constitute medical or counseling advice, diagnoses or treatment and should not be relied upon or used as a substitute for a professional medical evaluation. Future scientific and medical developments may impact the Service, Content and Advice and accordingly we do not represent, warrant or guarantee that the Service, Content and Advice will always reflect the most recent findings or developments. The Pump is not liable or responsible for any consequences of you having read, used or relied upon any Service, Content or Advice. We encourage you to see your healthcare provider on a regular basis and seek their advice prior to engaging in any new or modified fitness or wellness regimen or if you have any questions or concerns regarding your health and fitness regimen. YOUR DECISION TO RELY ON AND/OR USE THE CONTENT AND ANY ADVICE IS AT YOUR SOLE RISK. SUBJECT TO SECTION 12.4, THE PUMP DOES NOT MAKE AND HEREBY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING ANY CONTENT OR ADVICE AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY CONTENT OR ADVICE, AND THE PUMP PARTIES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY, PHYSICAL HARM, DISMEMBERMENT AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY CONTENT OR ADVICE.
10.2 Your Health Representations. By using the Service, you are representing and warranting to The Pump that you are in good health and have no injury, impairment, disability, disease, ailment or condition, that prevents you from, and otherwise do not know of any reason that you cannot or should not, properly or safely engaging in active or passive exercise or otherwise using the Service or that could cause increased your risk of injury or adverse health consequences as a result of your engagement in exercise or other use of the Service. YOU UNDERSTAND AND AGREE THAT ADVICE AND INSTRUCTOR GUIDANCE IS NOT A SUBSTITUTE FOR LISTENING TO YOUR OWN BODY OR YOUR HEALTHCARE PROVIDER’S ADVICE OR RECOMMENDATIONS. IF ANY INSTRUCTOR GUIDANCE ADVICE IN THE SERVICE. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING THE SERVICE OR FOLLOWING ANY ADVICE, OR IF ANY INSTRUCTOR GUIDANCE OR ADVICE CONFLICTS WITH WHAT HEALTHCARE PROVIDER HAS ADVISED, STOP YOUR USE OF THE SERVICE AND CONSULT YOUR HEALTHCARE PROVIDER AND/OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY.
10.3 Assumption of Risk. By using the Service, including the Content and Advice provided through the Service, you acknowledge that you have voluntarily chosen to participate in an intense physical program that may involve strength, endurance, flexibility, aerobic, cardio or other exercises, and physical and emotional exertion and stress, all of which can be potentially hazardous, and you further acknowledge that the specific risks vary from one activity to another, but range from (1) minor injuries such as scratches, bruises, sprains, and fainting; (2) major injuries such as eye injuries, joint or back injuries, heart attacks, rhabdomyolysis, and concussions; and (3) catastrophic injuries, including paralysis and death. IN CONSIDERATION OF YOUR RIGHTS TO ACCESS AND USE THE SERVICE, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DELEGEES, LEGAL REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, YOU HEREBY VOLUNTARILY AND KNOWINGLY ACKNOWLEDGE AND ASSUME ALL RISKS ASSOCIATED WITH YOUR RECKLESSNESS OR FAILURE TO USE REASONABLE CARE WHEN USING THE SERVICE AND/OR YOUR USE OF THE SERVICE OTHER THAN FOR ITS INTENDED PURPOSE, AND YOU HEREBY AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE PUMP PARTIES FROM ANY AND ALL CLAIMS OF ANY NATURE WHATSOEVER, INCLUDING ANY PROPERTY DAMAGE, PERSONAL INJURY, INJURY TO OTHERS OR DEATH, TO THE EXTENT ANY OF THE FOREGOING ARISE OUT OF OR RELATE IN ANY WAY TO YOUR NEGLIGENCE, INTENTIONAL ACTS AND/OR FAILURE TO EXERCISE REASONABLE CARE WHEN ACCESSING AND USING THE SERVICE.
11 | GENERAL DISCLAIMERS
11.1 | Your Experience. While we strive to provide a positive experience, we cannot and do not guarantee that the Service, including any Content therein, will always be fully-functional, current or accurate or that it will meet your needs, goals or expectations. The quality of the Service and display of Content may vary and can be affected by a variety of factors, including your location, internet speed or bandwidth availability, device or equipment configuration, settings and capabilities, and the specific Content or function you are attempting to access. Internet data usage charges may apply when accessing and using the Service; check with your internet, wireless or cellular provider for information on possible charges. You are solely responsible for all charges associated with your access and use of the Service. Descriptions provided through the Service are approximate and are provided for convenience purposes only. YOU ACKNOWLEDGE AND AGREE THAT, SUBJECT TO SECTION 12.4: (1) THE SERVICE AND ANY RELATED ADVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS; (2) YOUR ACCESS TO AND USE OF THE SERVICE OR ADVICE IS AT YOUR OWN RISK, AND (3) THE PUMP PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES, AND HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, OF ANY KIND RELATED TO THE SERVICE OR ADVICE, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY (A) WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY, QUIET ENJOYMENT, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND (B) WARRANTIES THAT THE SERVICE OR ADVICE WILL MEET YOUR REQUIREMENTS, BE COMPATIBLE WITH YOUR DEVICES, HARDWARE OR SOFTWARE, BE OR REMAIN FREE FROM DEFECTS, INTERRUPTIONS, INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE.
11.2 | Waiver and Release. IN CONSIDERATION OF YOUR RIGHTS TO ACCESS AND USE THE SERVICE AND ADVICE, AND ON BEHALF OF YOUR HEIRS, BENEFICIARIES, DELEGEES, LEGAL REPRESENTATIVES, SUCCESSORS, AND ASSIGNS, YOU HEREBY VOLUNTARILY AND KNOWINGLY, FOREVER WAIVE, RELEASE, COVENANT NOT TO SUE, DISCHARGE AND HOLD HARMLESS THE PUMP PARTIES FROM, AND THE PUMP PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR, ANY LOSSES OR DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY, INCLUDING FOR ANY PROPERTY LOSS OR DAMAGE, LOSS OF EARNINGS OR EARNING CAPACITY, PERSONAL INJURY, ILLNESS OR IMPAIRMENT, PHYSICAL PAIN, MENTAL ANGUISH, PARALYSIS, HEART ATTACK OR DEATH, ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THESE TERMS, YOUR ACCESS TO AND USE OF THE SERVICE OR ADVICE, YOUR PURCHASES AND THE USE OR NON-USE OF ANY SERVICE OR CONTENT PROVIDED OR OFFERED HEREUNDER, WHETHER RELATED TO EXERCISE OR NOT AND REGARDLESS OF LEGAL THEORY OR WHETHER ARISING IN OR BY STATUTE, TORT, CONTRACT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE AND WHETHER SUCH LOSSES OR DAMAGES ARE KNOWN OR UNKNOWN TO YOU OR ANY OTHER PERSON; PROVIDED THAT THE FOREGOING RELEASE AND WAIVER OF LIABILITY SHALL NOT APPLY TO ANY LOSSES OR DAMAGES CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF ANY THE PUMP PARTY TO THE EXTENT SUCH DISCLAIMER PROHIBITED BY LAW. NONETHELESS, THIS RELEASE IS INTENDED BY BOTH PARTIES TO BE AS BROAD IN EFFECT AS ALLOWED BY LAW AND SHALL COVER OR INCLUDE ANY CLAIM OR DEMAND YOU HAVE, HAD OR EVER WILL HAVE. ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA, AND ANY SIMILAR APPLICABLE LAW, ARE HEREBY EXPRESSLY WAIVED. SECTION 1542 READS AS FOLLOWS: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
12 | LIMITATIONS OF LIABILITY
12.1 Sole and Exclusive Remedy. SUBJECT TO SECTION 12.4, YOUR SOLE AND EXCLUSIVE REMEDY UNDER THESE TERMS OR FOR ANY PROBLEMS OR DISSATISFACTION WITH THE SERVICE OR ADVICE IS TO STOP USING THE SERVICE AND, WHERE APPLICABLE, CANCEL ANY ASSOCIATED SERVICE MEMBERSHIP.
12.2 Limitation of Liability. SUBJECT TO SECTION 12.4, THE PUMP PARTIES WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING ANY DEATH, PERSONAL INJURY, LOSS OF USE, LOSS OF PROFITS OR GOODWILL, LOSS OF DATA (INCLUDING LOSS OF USER CONTENT), DAMAGE TO DEVICES, EQUIPMENT, HARDWARE, SOFTWARE OR OTHER PROPERTY, OR ANY OTHER TANGIBLE OR INTANGIBLE LOSS, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, ANY ADVICE, CONTENT, OR OTHERWISE IN ANY WAY RELATING TO THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ANY THE PUMP PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
12.3 Limitation of Damages. IN ADDITION, IF AND TO THE EXTENT THE PUMP IS LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICE, ANY ADVICE OR CONTENT, OR THESE TERMS, THEN, SUBJECT TO SECTION 12.4, THE AGGREGATE LIABILITY OF THE PUMP FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO GREATER OF (A) ONE HUNDRED DOLLARS ($100.00 USD) OR (B) THE AMOUNT YOU PAID TO THE PUMP FOR ACCESS TO THE SERVICE IN THE THREE (3) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH CLAIM.
12.4 Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THESE TERMS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND THE PUMP PARTIES DO NOT DISCLAIM ANY WARRANTY, LIABILITY FOR CERTAIN DAMAGES, OR OTHER RIGHT THAT THEY ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW, AND YOU MAY HAVE GREATER RIGHTS UNDER SUCH APPLICABLE LAWS.
13 | ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES (AS DEFINED BELOW) WITH THE PUMP AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
13.1 Informal Dispute Resolution. Our goal is to do our best to ensure that every experience with our business and the Service will exceed your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us at firstname.lastname@example.org. When contacting us, we ask that you include your name, address, phone number and email address, and a description of your problem or concern and any specific relief you seek.
13.2 Arbitration Agreement. By using the Service, you and The Pump agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), www.adr.org. If you initiate arbitration, you shall have the choice as between these two arbitration forums; if The Pump initiates arbitration, it shall have the choice as between these two arbitration forums.
YOU AND THE PUMP EACH HEREBY AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, INCLUDING ALL ISSUES RELATING TO THE ENFORCEABILITY, INTERPRETATION, SCOPE, AND APPLICATION OF THIS ARBITRATION AGREEMENT (SUCH AS “GATEWAY” ISSUES OF ARBITRABILITY, WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
13.3 Class Action Waiver. By using the Service, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving The Pump or any other person. You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against The Pump. We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action). If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court. Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
13.4 Definition of Dispute. Except as described in the following paragraph, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and The Pump regarding any aspect of your relationship with The Pump, whether based in contract, statute, regulation, ordinance, tort (including fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, whether related to the access to and use of the Service or otherwise, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.
However, “Dispute” SHALL NOT include any (1) personal injury claim, claim for lost, stolen or damaged property, or any individual action in small claims court; (2) claim that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, (3) claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public and (4) any enforcement action, validity determination or other claim arising from or relating to infringement, misappropriation, theft, piracy or other unauthorized use of intellectual property. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.
13.5 How Will the Arbitration Work? Either you or The Pump may initiate arbitration proceedings. The arbitration will be conducted before a single arbitrator. The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration. If you or The Pump initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:
- For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.
- Which particular rules apply in AAA arbitration will depend on how much money is at issue. For less than $75,000, the AAA’s Supplementary Procedures for Consumer- Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879.
If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, The Pump will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.
Where Will the Arbitration Be Held? You can bring the arbitration in either California or in the state where you live if there is a JAMS or AAA in that state. In the event that The Pump initiates an arbitration, it will only do so in the state where you live before either JAMS or AAA, unless there is no JAMS or AAA in your state, in which case The Pump may initiate the arbitration in California. As set forth in Section 14.1 below, the arbitrator will apply California law.
14 | GENERAL
14.1 Governing Law. These Terms, as well as your interactions with the Service and with use, will be governed by the laws of the State of California, without regard to any conflict of law principles. For any Dispute that is not subject to arbitration or cannot be heard in small claims court, you and The Pump hereby irrevocably consent and submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California and waive all objections thereto.
14.2 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
14.3 Miscellaneous. These Terms, together with the Additional Terms and any other agreements, policies or documents, referenced in these Terms or otherwise made available to you as part of the Service, constitute the entire and exclusive understanding and agreement between you and The Pump in connection with the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign or transfer these Terms, or delegate any rights or obligations under these Terms, in whole or in part, by operation of law or otherwise at any time without notice or consent. Our failure to enforce any provision or exercise any right under these Terms will not constitute a waiver of such provision, nor will any written waiver by us of any breach or default of these Terms be a waiver of any subsequent breach or default. Any waiver will be effective only if in writing signed by an authorized representative of The Pump. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable by an arbitrator or court of competent jurisdiction, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
15 | CONTACT US
Our corporate offices are located at 3110 Main Street, Suite 300, Santa Monica, CA 90045. If you have questions regarding the Service or these Terms, or would like to request support for the Service, please contact us at email@example.com. We will attempt to respond to all requests within a reasonable time frame, but we cannot assure you that a response will be provided within any particular time frame or that we will be able to answer any such requests.
ADDITIONAL TERMS: SERVICE MEMBERSHIPS
1 | SERVICE MEMBERSHIP
1.1 Service Memberships. To access and use certain features, functions and Content within the Service, you may be required to have a subscription to the Service (a “Service Membership”). YOUR SERVICE MEMBERSHIP WILL CONTINUE AND AUTOMATICALLY RENEW, AND YOU WILL BE CHARGED, UNTIL CANCELLED.
1.2 Fees and Recurring Billing. Your Service Membership is subject to your payment of a monthly fee, plus taxes (your “Service Membership Fee”) using any third-party app store from which you download the App (the “App Store”) pursuant to the applicable App Store payment terms (“Payment Terms”). We reserve the right to change the amount of your Service Membership Fee in accordance with the Payment Terms.
2 | CANCELLATION
You may cancel your Service Membership by following the instructions provided by the App Store to cancel your Service Membership, for example by turning off auto-renew for the Service Membership with the App Store. Once cancelled, your Service Membership and access to the Service will automatically end at the end your current billing period, and you will lose access to any Service features, functions and Content that require a membership. Please note that we may still send you promotional communications about The Pump (including about the Service or affiliates of The Pump), unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
3 | PRICING AND PROMOTIONS
3.1 Pricing. Unless otherwise specifically noted, prices for Service Memberships are shown in U.S. Dollars and any tax and other charges, if any, are additional and will be added at the time of purchase. Prices are set by The Pump and we reserve the right to adjust any pricing or other amounts for any Service Membership at our sole discretion, at any time and without notice, other than the notice of Service Membership Fee changes described in Section 1.2 of these Additional Terms.
ADDITIONAL TERMS: iOS AND OTHER APP PRODUCTS
You acknowledge and agree that the availability of the App is dependent upon the App Store and that these Terms are between you and The Pump, and not with the applicable App Store. Each App Store may have its own terms and conditions, including Payment Terms, to which you must agree before downloading or accessing the App, and the limited rights The Pump grants you to use the App are conditioned upon your compliance with any and all terms and conditions of such App Store or any other applicable third-party terms of agreement (e.g., with your wireless or cellular service provider).
In addition, the following terms and conditions apply to any App on an iOS device, and you and The Pump each hereby acknowledge that: (1) Responsibility for iOS App: the Terms, including these Additional Terms, are between you and The Pump only, not with Apple Inc. (“Apple”), and subject to any limitations set forth in these Terms, The Pump, not Apple, is solely responsible for the iOS App Service and its contents. To the extent these Terms provide for any usage rules applicable to an iOS App that are less restrictive than or otherwise conflict with the applicable Apple App Store Terms of Service, the more restrictive or conflicting provision in such Apple App Store Terms of Service will govern and apply; (2) License: the license granted to you under these Terms is limited to a non-transferable license to use the iOS App any Apple- branded product or device that you own or control, as permitted by the Usage Rules set forth in the applicable App Store Terms of Service; (3) Maintenance: to the extent any maintenance and support services for the iOS App are required under applicable law or expressly contemplated by these Terms, The Pump, not Apple, is solely responsible for such services; Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App: (4) Warranties: The Pump, not Apple, is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed or limited under these Terms. If the iOS App fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price (if any) for such iOS App to you. However, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the iOS App; (5) Claims: The Pump, not Apple, is responsible for addressing any claims you or any third party may have relating to the iOS App or your possession and/or use of the iOS App, including: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. However, you acknowledge and agree that The Pump’s responsibility for the foregoing claims is limited and disclaimed, to the maximum extent permitted by applicable law, as further described in these Terms; (6) Infringement: if any third party claim that the iOS App, or your possession and use of the iOS App, infringes that third party’s intellectual property rights, The Pump, not Apple is solely responsible for any investigation, defense, settlement and discharge of such third party intellectual property infringement claim; (7) Your Representations: you hereby represent and warrant that you are not (a) located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country or (b) on any U.S. Government list of prohibited or restricted parties; and (8) Third Party Beneficiaries: Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.