Last Updated: May 24, 2022
Please read these Terms of Service (the “Terms”) carefully because they govern your use of the website located at https://formelife.com/ (the “Site”), our fitness equipment including, without limitation, FORME’s Studios and any other hardware products, material and equipment made available by us (collectively, “Studios”), the interfaces connected to the Studios, all associated mobile, desktop or device applications (“Apps”), all FORME controlled social media pages, and all products, services, content and features related to the foregoing, which is collectively referred to as the “Services”. By registering as a member or by visiting, browsing, or using the Services in any way, you accept and agree to be bound by these Terms, which form a binding agreement between you and Interactive Strength Inc. dba FORME (“FORME” or “we” or "us").
IMPORTANT NOTICE REGARDING ARBITRATION FOR U.S. CUSTOMERS: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND FORME THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 16 “DISPUTE RESOLUTION” BELOW FOR DETAILS REGARDING ARBITRATION.
Privacy Notice. Please review our Privacy Notice (“Privacy Notice”), which also governs your use of the Services, for information on how we collect, use and share your information. Our Privacy Notice forms part of these Terms.
Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site, to the App and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, in our sole discretion.
Who May Use the Services? You must be at least 18 years old, or such other minimum age at which you can provide consent to processing your personal data under the laws of your territory, and not otherwise barred from using the Services under applicable law, to register with and use the Services.
Sale of Products.
FORME accepts orders for Studios, and any other equipment, apparel or accessories that we may offer through the Site or at retail showrooms. You understand that availability of products cannot be guaranteed and that the products, associated prices and any other information related to such products and provided by FORME via the Services are subject to corrections and changes without notice. Without limiting the generality of the foregoing, colors, styles and other variants depicted via the Services are for illustration purposes only and are subject to change in FORME’s sole and absolute discretion, and FORME reserves the right to revoke any stated offer and correct any errors, inaccuracies or omissions.
Unless otherwise specified at the time of purchase, you must pay for the products you purchase when placing the order. All products ordered will be delivered to the shipping address you provide. We reserve the right to cancel an order placed by you at any time and for any lawful reason prior to delivery of the products, provided that in the event of a cancellation, we will refund any fees already paid by you for such order. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the Site or to your email address after your payment has been processed. Please see Warranty and Return Policy for further information.
Profile. To access certain features of the Services including, without limitation, our live personal training services and on-demand content, you’ll need to register as a member and create a profile. It’s important that you provide us with accurate, complete and current profile information and keep this information up to date. To protect your profile, keep the profile details and password confidential, and notify us right away of any unauthorized use. If you don’t comply with the foregoing, we might have to suspend or terminate your profile. You’re responsible for all activities that occur under your profile, including activities by unauthorized users.
Membership Structure and Fees.
General. In order to access all content, and features available via the Services, you’ll be required to purchase a membership subscription (“Membership ”). Your Membership will provide you with full access to any Studio (provided that you will only be able to log in to a single Studio at a time) and to the Apps, for as long as your Membership remains active. We may impose restrictions on the number of streams that can occur simultaneously under a single Membership or the maximum number of users per Membership. The Membership Holder is responsible for all activity under their Membership.
Recurring Payment. Unless otherwise indicated via the Services at the time you purchase your Membership, you will be charged the monthly membership fee communicated to you, plus any applicable taxes, and other charges (“Membership Fee ”), at the beginning of your Membership and each month thereafter, as applicable, at the then-current Membership Fee. BY PURCHASING A MEMBERSHIP, YOU AUTHORIZE FORME (OR OUR THIRD-PARTY PAYMENT PROCESSOR) TO CHARGE YOUR PAYMENT METHOD FOR THE MEMBERSHIP FEE AND INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. Following the purchase of your Membership, we (or our third-party payment processor) will automatically charge you for the Membership Fee each month, on the same day of the month that you began your Membership, using the Payment Information you provided, until you cancel your Membership. “Payment Information ” means all information relevant to the processing of your payment for the Membership Fee including, without limitation, your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information and understand that you are required to keep your Payment Information current, complete, and accurate and notify FORME if your selected payment method is canceled for any reason. You also authorize us to provide your Payment Information to third parties so we can complete your transaction. By electing to purchase a Membership, you agree to the pricing, payment and billing policies applicable to the Membership Fee as communicated to you (including the recurring payment features), and you accept responsibility for all recurring payment obligations prior to cancellation or termination of your Membership by you or FORME in accordance with Section 6(d) below. All payments for the Membership Fee are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
Automatic Renewal. Before the end of your Membership, FORME will send you a reminder with the then-current Membership Fee, in accordance with applicable law. Your Membership automatically renews and continues until cancelled by you or FORME or until FORME terminates your access to or use of the Services in accordance with these Terms.
Membership Cancellation, Suspension, Termination.
Cancellation by you: YOU UNDERSTAND THAT YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL YOUR PURCHASE AND/OR RECEIVE A REFUND OF YOUR MEMBERSHIP FEE AT ANY TIME. If something unexpected happens in the course of completing your payment, we reserve the right to cancel the transaction for any reason; if we cancel the transaction, we will refund any payment you have already remitted to us in connection with such transaction. Without limiting the foregoing, you may cancel your Membership at any time, but please note that such cancellation will only be effective at the end of the then-current Membership period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL MEMBERSHIP PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE MEMBERSHIP FEE PAID FOR THE THEN CURRENT MEMBERSHIP PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to firstname.lastname@example.org or cancel directly via the Site, Apps or Studio. You will be responsible for all Membership Fees (plus any applicable taxes and other charges) incurred for the then-current Membership period. If you cancel your Membership, your right to use the Services will continue until the end of your then current Membership period and will then terminate without further charges.
Suspension/Termination by FORME. FORME may immediately terminate or suspend your Membership, with or without notice, in our sole discretion, if:
- your payment is overdue (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend);
- you provide false or inaccurate information; or
- you violate these Terms, any other agreement then in effect between you and FORME, or otherwise engage in a conduct that is a violation of any applicable law;
If we terminate or suspend your Membership, your license to use any software or content provided in connection with the Membership is also terminated or suspended (as applicable). If your Membership is terminated, FORME has the right to immediately delete all data, files, and other information stored in or for your profile without further notice to you. You must pay all Membership Fee and charges up to and including the date of termination. Should you wish to resume your Membership after any suspension, a restoration of service fee may apply. This fee will be in addition to all past due unpaid Membership Fee and other charges.
Booking. By purchasing a Membership, you get access to one complimentary one-on-one personal training session (a “Session”) with a live trainer who will provide you with personalized recommendations based on your fitness needs and ability. You may book your complimentary Session by emailing us at (email@example.com). After your complimentary Session, you may schedule additional Sessions with the trainer assigned to you for your complimentary Session, at the rate communicated to you during your Session (or otherwise communicated to you by FORME), or with any other available trainer, at the rate applicable to them, as set forth in Section 7(b). Unless otherwise indicated by FORME, Sessions may be purchased individually or as part of pre-paid packages, as further indicated on the Site or as otherwise communicated by FORME. The Sessions purchased as part of a package must be used by the same user and cannot be shared among users, including family members, whether or not the various users share a single Membership.
Rates and Payment. The rate charged by each trainer will be communicated to you by FORME. We will notify you of changes to the trainers’ rates via email or any other means of communication determined by FORME at its own discretion. Every fifteen (15) days (a “Billing Period”), unbilled Sessions completed or canceled less than twenty-four (24) hours before the start of the Session during the preceding Billing Period will be charged to the billing method saved in your account. Packages will be payable in advance and charged to the billing method saved in your account. You hereby authorize us to charge such payment method when payment is due.
Discounts. From time to time, we may offer you discounts if you purchase a group of Sessions. These discounts only apply to the number of Sessions so purchased as a group. You understand that FORME is under no obligation to provide any discounts and these discounts will be granted at FORME’s sole discretion.
Cancellation Policy. You may cancel or change the time of a Session up to twenty-four (24) hours before the start of a Session. Unless otherwise determined by FORME in its sole discretion, cancellations less than twenty-four (24) hours before the start of a Session will not be accepted, and you will be charged for the full cost of the Session.
Your Conduct. FORME is strongly committed to maintaining a respectful and judgment-free environment and will not tolerate any harassment, disrespectful language, violent behavior or discrimination of any sorts, whether based on an individual’s race, color, age, gender, gender identity, gender expression, sexual orientation, pregnancy, religion, national origin, alienage or citizenship status, mental or physical disability, sex, marital status, medical condition, or any other unlawful consideration. You agree to comply with the foregoing and to behave in a civil and respectful manner at all times during your Sessions and during your use of the Services in general.
Intellectual Property Ownership and License
Ownership. Unless otherwise indicated, all content, information, and other materials available through the Services including, without limitation, visual interfaces, graphics, design, text, images, sound files, software, computer code (in source code and object code form) and the selection and arrangement thereof and FORME’s trademarks (collectively, the “Materials”) are the exclusive property of FORME, its affiliates or third-party licensors.
License. Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the Services, FORME hereby grants you a limited, non-exclusive, non-transferable, revocable license (with no right to sublicense) to (i) access and use the Services and (ii) download, install and run the Apps on your personal devices, solely for your personal non-commercial use, and provided you keep intact all copyright and other proprietary notices.
Restrictions. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Materials or the Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Materials or the Apps to any third party; (iii) reverse engineer, decompile or disassemble any of the Materials or Apps; or (iv) make the functionality of the Materials or Apps available to multiple users through any means. FORME reserves all rights not expressly granted in these Terms. Any use of the FORME Services or the Materials in a manner not specifically authorized in these Terms is prohibited and unless explicitly stated in these Terms, nothing in them shall be interpreted as conferring any license to intellectual property rights, whether by estoppel, implication, or other legal principles.
Additional Information: Apple App Store. This Section 7(d) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party's intellectual property rights. Apple and its subsidiaries, are third-party beneficiaries of these Terms, and upon your acceptance of the 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 thereof. You represent and warrant that (i) you are not 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; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service when using the App.
Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback ”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
General Prohibitions and FORME’s Enforcement Rights. You agree not to do any of the following:
- Use, display, mirror or frame the Services or any individual element within the Services, including any of the Materials, without FORME’s express written consent;
- Access, tamper with, or use non-public areas of the Services, FORME’s computer systems, or the technical delivery systems of FORME’s providers;
- Attempt to probe, scan or test the vulnerability of any FORME system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by FORME or any of FORME’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by FORME or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation through or referring to the Services;
- Use any meta tags or other hidden text or metadata utilizing a FORME trademark, logo URL or product name without FORME’s express written consent;
- Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software and hardware used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
FORME is not obligated to monitor your access to or use of the Services. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources. The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
Termination. We may suspend or terminate your access to and use of the Services, including suspending access to or terminating your profile, in our sole discretion, at any time and without notice to you. You may cancel your profile at any time directly via your profile page on the Site or the App. Upon any termination, discontinuation or cancellation of the Services or your profile, the following Sections will survive: 1, 6, 8, 11, 12, 13, 14, 15, 16 and 17.
- FORME reserves the right to modify the Services including, but not limited to, updating, adding to, enhancing, modifying, removing or altering any content or features of the Services, at any time, in its sole discretion. You are responsible for providing your own access (including, without limitation, computer, mobile device and Internet connection) to the Services.
- OTHER THAN AS EXPRESSLY PROVIDED IN WRITING BY FORME IN CONNECTION WITH YOUR PURCHASE OF A PRODUCT, INCLUDING AS SET FORTH IN THE WARRANTY AND RETURN POLICY, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, RELATING TO OR ARISING FROM THE SERVICES. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON THE SERVICES. THE SERVICES ARE CONTINUALLY UNDER DEVELOPMENT AND YOU UNDERSTAND THAT DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE AVAILABLE VIA THE SERVICES. TO THE EXTENT THAT ANOTHER PARTY MAY HAVE ACCESS TO THE SERVICES ON YOUR DEVICE, YOU ARE SOLELY RESPONSIBLE FOR INFORMING SUCH PARTY OF ALL DISCLAIMERS AND WARNINGS IN THESE TERMS. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY CONTAINED HEREIN IS PROHIBITED BY APPLICABLE LAW, ANY AND ALL APPLICABLE WARRANTIES FOR WHICH THE DISCLAIMER OR LIMITATION DOES NOT APPLY WILL BE LIMITED IN DURATION TO A PERIOD OF 12 MONTHS AFTER THE DATE ON WHICH YOU FIRST USED THE SERVICES, AND NO WARRANTIES WILL APPLY AFTER SUCH PERIOD.
- THE SERVICES OFFER HEALTH AND FITNESS INFORMATION AND ARE DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN OR HEALTH PRACTITIONER BEFORE BEGINNING ANY FITNESS PROGRAM. YOU SHOULD NOT RELY ON ANY INFORMATION PROVIDED THROUGH THE SERVICES AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN, HEALTH PRACTITIONER OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE HEARD OR READ VIA THE SERVICES. YOU UNDERSTAND THAT YOUR STUDIO AND/OR TRAINER MAY SUGGEST WEIGHT OR RESISTANCE LEVEL FOR A GIVEN EXERCISE AND YOUR STUDIO’S SETTINGS MAY ADJUST WEIGHT OR RESISTANCE SUGGESTIONS BASED ON PREVIOUS USES AND PERFORMANCE HISTORY ASSOCIATED WITH YOUR PROFILE. THE UPDATED SETTINGS AND ANY INFORMATION PROVIDED THROUGH THE SERVICES ARE NOT BASED ON AND DO NOT CONSTITUTE MEDICAL OR HEALTHCARE ADVICE AND THEIR USE IS SOLELY AT YOUR OWN RISK. NONE OF THE CONTENT AVAILABLE THROUGH THE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THESE TERMS, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
- In Subscribing to or otherwise using the Services, you represent that either your physician has approved your use of the Services or that all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) your physician is not currently prescribing drugs for your blood pressure or heart condition; (iii) you have never felt chest pain when engaging in physical activity, and have not experienced chest pain otherwise, at any time, within the past month; (iv) you have never lost your balance because of dizziness and have never lost consciousness as a result of exertion; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) you do not have a history of high blood pressure; and (vii) you do not know of any other reason you should not exercise. You are responsible for providing accurate information and disclosing any health or medical issues.
- IN SUBSCRIBING TO OR OTHERWISE USING THE SERVICES AND BY ORDERING A STUDIO OR ANY OTHER PRODUCT TO BE DELIVERED TO YOUR PLACE OF RESIDENCE OR OTHER PROPERTY, YOU CONFIRM THAT YOU ARE AWARE OF THE HIGHLY CONTAGIOUS NATURE OF THE CORONAVIRUS DISEASE (COVID-19) (THE “DISEASE”). WHILE COMPANY HAS ENDEAVORED TO IMPLEMENT MEASURES TO REDUCE THE RISK OF INJURY AND THE SPREAD OF THE DISEASE, YOU ARE AWARE OF THE RISK THAT YOU MAY BE EXPOSED TO OR CONTRACT THE DISEASE IN THE COURSE OF THE DELIVERY OF YOUR PRODUCTS BY COMPANY, WHICH MAY RESULT IN MEDICAL TESTING, MEDICAL EXPENSES, SERIOUS ILLNESS, DISABILITY OR DEATH. YOU ACKNOWLEDGE THAT THESE RISKS MAY RESULT FROM OR BE COMPOUNDED BY THE ACTIONS, OMISSIONS OR NEGLIGENCE OF COMPANY PERSONNEL OR THIRD PARTY PROVIDERS. YOU HEREBY ACCEPT AND ASSUME ALL SUCH RISKS. IN ADDITION, YOU AGREE THAT COMPANY SHALL HAVE NO LIABILITY TO YOU FOR ANY LOSS ARISING FROM HARM WHICH MAY OCCUR DUE TO YOUR EXPOSURE TO THE DISEASE OR ANY OTHER DISEASE. ON YOUR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF YOUR HOUSEHOLD, YOUR HEIRS, EXECUTORS, ADMINISTRATORS AND ASSIGNS, YOU HEREBY AGREE TO RELEASE AND HOLD COMPANY, ITS PARENT, AFFILIATES, SUBSIDIARIES, INVESTORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS, AND ALL OTHER PERSONS AND ENTITIES AS COMPANY MAY DESIGNATE FROM TIME TO TIME HARMLESS FROM AND AGAINST ANY AND ALL LOSS OR CLAIM OR OTHER LIABILITY OR EXPENSE RESULTING FROM OR RELATING IN ANY WAY DIRECTLY OR INDIRECTLY TO THE SERVICES INCLUDING, WITHOUT LIMITATION, YOUR EXPOSURE TO THE DISEASE.
Indemnity. You will indemnify and hold FORME and its officers, directors, employees and agents, harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, or (b) your violation of these Terms.
Limitation of Liability.
- TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER FORME NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FORME OR ITS SERVICE PROVIDERS 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.
- TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL FORME’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO FORME FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO FORME, AS APPLICABLE.
- THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FORME AND YOU.
Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 16 “Dispute Resolution,” the exclusive jurisdiction for all Disputes (defined below) that you and FORME are not required to arbitrate will be the state and federal courts located in the County of San Francisco, and you and FORME each waive any objection to jurisdiction and venue in such courts.
Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be resolvedsolely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and FORME agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and FORME are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
Exceptions. As limited exceptions to Section 16(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won’t seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
Injunctive and Declaratory Relief. Except as provided in Section 16(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
Class Action Waiver. YOU AND FORME AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution Section shall be null and void.
Severability. With the exception of any of the provisions in Section 16(f) of these Terms ("Class Action Waiver "), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
Reservation of Rights. FORME and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services.
Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without FORME’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. FORME may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Notices. Any notices or other communications provided by FORME under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Waiver of Rights. FORME’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of FORME. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Contact Information. If you have any questions about these Terms or the Services, please contact firstname.lastname@example.org.