KILOGEAR Services Terms and Conditions
Last Updated: July 22, 2020
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. KILOGEAR, Inc. (together with our affiliates, “KILOGEAR”, “KILOGEAR CUT”, “FHIIT”, “KILOGEAR Fitness, “we”, or “us”) provides online and app based fitness programs and related products, services, content and features through KILOGEAR, Inc. websites and apps. To make these Terms easier to read, the KILOGEAR, Inc. Sites, Programming and Apps, and KILOGEAR, Inc. controlled social media pages are collectively called the “the Services”. By registering as a member or by visiting, browsing, or using the Services in any way, you (as a “user”) accept and agree to be bound by these Terms of Service (“Terms”), which forms a binding agreement between you and KILOGEAR, Inc.
PLEASE READ: THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER (SECTION 20). READ CAREFULLY, INCLUDING YOUR RIGHT, IF APPLICABLE, TO OPT OUT OF ARBITRATION. EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 20 BELOW, OR WHERE PROHIBITED BY LAW, BY ENTERING INTO THESE TERMS YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND KILOGEAR, INC. WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
If you do not wish to be bound by these Terms, you may not access or use the Services. Certain elements of the Service may be subject to additional terms and conditions specified from time to time; your use of those elements of the Service is subject to those additional terms and conditions, which are incorporated into these Terms by this reference.
- Who May Use the Service
IF YOU ARE UNDER THE AGE OF 18 OR THE AGE OF MAJORITY IN YOUR JURISDICTION, YOUR PARENT OR LEGAL GUARDIAN MUST READ AND AGREE TO THE TERMS OF THIS USER AGREEMENT BEFORE YOU MAY USE THE SERVICE. IF YOU AND, IN THE CASE OF MINORS, YOUR PARENT OR LEGAL GUARDIAN, DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT, YOU ARE NOT PERMITTED TO USE OR ACCESS THIS SERVICE.
We may, in our sole discretion, refuse to offer the Service to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that these Terms are in compliance with all laws, rules and regulations applicable to you, and the right to access and use the Service is revoked where these Terms or use of the Service is prohibited or conflicts with any applicable law, rule or regulation. Further, the Service is offered only for your personal, non-commercial use, and not for the use or benefit of any third party.
- License to Use the Service
Subject to your compliance with these Terms and solely for so long as you are permitted by us to access and use the Service, KILOGEAR, Inc. grants you a limited, non-transferable, non-exclusive, revocable right and license to access and use the Service for your own personal, non-commercial purposes, a right which may not be assigned or sublicensed to anyone. This license includes the right to view Content (defined below) available on the Service. This license grant is subject to you agreeing to and abiding by the KILOGEAR, Inc. Intellectual Property and DMCA Policy, which forms a part of these Terms. This license will remain in effect unless and until you violate these Terms or this license is terminated by you or KILOGEAR, Inc.
Except as expressly permitted in writing by an authorized representative of KILOGEAR, Inc., you will not reproduce, redistribute, sell, transfer, create derivative works from, decompile, reverse engineer, or disassemble the Service, nor will you take any measures to interfere with or damage the Service. Unless otherwise specified, copying or modifying any Content or using Content for any purpose other than your personal, non-commercial use of the Service, including use of any such Content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by KILOGEAR, Inc. in these Terms are reserved.
- What information we may collect about you;
- What we use that information for; and
- With whom we share that information.
- Membership Requirements Registration
To enjoy full access to the Service, you must register as a member of the Service and enter into a subscription agreement for (a “Subscription”). Your Subscription is also governed by the Membership Terms. You must provide complete and accurate registration information to KILOGEAR, Inc., complete the Subscription process, and notify us if any of your information changes. If you fail to keep your account information up to date, we may have to suspend or terminate your Subscription.
Participation in any live classes is subject to additional fees that are separate from the Subscription fees for KILOGEAR, Inc.’s online Content. You must have an account registered on our website in order to sign up for live.
You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not allow others to use your account. You must safeguard the confidentiality of your password, and if you are using a device that others have access to, log out of your account after using the Service. If you become aware of an unauthorized access to your account, change your password and notify our Support team immediately.
- Membership Structure and Fees
KILOGEAR, Inc. will provide information on its Subscription requirements on the KILOGEAR, Inc.Site and/or by other means through the Service. Features and prices are subject to change.
- Sale of Products
KILOGEAR, Inc. accepts orders for the KILOGEAR and KILOGEAR CUT and any other equipment, apparel or accessories that we may offer through the KILOGEAR, Inc. Sites. Unfortunately, availability of products cannot be guaranteed. Please note that product, service and other information provided is subject to corrections and changes without notice. Graphics and diagrams are for illustrative purposes only and may not accurately reflect actual product availability. Colors, styles and other variants depicted are for illustration only and are subject to change. Errors will be corrected where discovered, and we reserve the right to revoke any stated offer and to correct any errors, inaccuracies or omissions.
Unless otherwise specified at the time of purchase, you must pay for products when you place 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 our delivery of the product(s) and receipt of payment in full from you, provided that we will refund any fees that you prepaid for those products if we cancel. We may send an acknowledgment of receipt of your order to the email address you provide and/or proof of purchase information through the KILOGEAR, Inc. Site or to your email address after your payment has been processed. Please see our Warranty and Return Policy for further information about KILOGEAR, Inc. products.
- Termination; Account Deletion
These Terms begin on the date you subscribe to the Service and continue as long as you have an account with us and/or continue to use the Service.
KILOGEAR, Inc. may, in KILOGEAR, Inc.’s sole discretion, suspend, disable, or delete your account (or any part thereof) for any lawful reason. If KILOGEAR, Inc. deletes your account, you may not re-register for or use the Service under any other user name or profile. KILOGEAR, Inc. may block your access to the Service to prevent re-registration.
Upon termination of these Terms all licenses granted by KILOGEAR, Inc. will terminate. The following sections survive termination: Privacy, Indemnification, No Warranties, Limitation of Liability, Safety Warnings, Intellectual Property, Arbitration Requirement & Class Action Waiver, Contracting Entities, Governing Law and Jurisdiction and all general provisions. If you cancel your Subscription or it is terminated for any reason, you will lose access any other Content or features provided through the Service.
- Rights and Terms for the Service and Apps
Subject to your compliance with these Terms, KILOGEAR, Inc. grants to you a limited non-exclusive, non-transferable, revocable license, with no right to sublicense, to download content and install a copy of any KILOGEAR, Inc. App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. You may not copy the content or App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the Service or Apps; (ii) distribute, transfer, sublicense, lease, lend or rent the Service or Apps to any third party; (iii) reverse engineer, decompile or disassemble the Service or Apps; or (iv) make the functionality of the Service or Apps available to multiple users through any means. KILOGEAR, Inc. reserves all rights in and to the Service or Apps not expressly granted to you under these Terms.
The following terms apply to any App accessed through or downloaded from any app store or distribution platform (like the Apple App Store or Google Play) where the App may now or in the future be made available (each an “App Provider”). You acknowledge and agree that:
- These Terms are between you and KILOGEAR, Inc. , and not with the App Provider, and KILOGEAR, Inc. (not the App Provider), is solely responsible for the App.
- The App Provider 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 the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of KILOGEAR, Inc. .
- The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, 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.
- In the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, KILOGEAR, Inc. will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
- The App Provider and its affiliates are third-party beneficiaries of these Terms as related to your license to the App, and that, upon your acceptance of the Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App 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; (ii) you are not listed on any U.S. Government list of prohibited or restricted parties; (iii) you are not an individual, or associated with an entity, designated under the UK’s Terrorist Asset-Freezing etc. Act 2010 (TAFA 2010); and (iv) you are not otherwise subject to or affected in any way by any national security or terrorism related rules whether applicable to you personally or to your location or other circumstances.
- You must also comply with all applicable third party terms of service when using the App.
- General Prohibitions and KILOGEAR, Inc. ’s Enforcement Rights
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any of the Service Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person, animal, or entity; (vii) exploits minors or (viii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the. Service or any individual element within the Service, KILOGEAR, Inc.’s name, any KILOGEAR, Inc. trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without KILOGEAR, Inc. ’s express written consent;
- Attempt to probe, scan or test the vulnerability of any KILOGEAR, Inc. system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by KILOGEAR, Inc. or any of KILOGEAR, Inc.’s providers or any other third party (including another user) to protect the KILOGEAR, Inc. Service or Content;
- Bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Service;
- Attempt to access, scrape or search the Service or Content or download Content from the Service, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by KILOGEAR, Inc. 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;
- Use any meta tags or other hidden text or metadata utilizing a KILOGEAR, Inc. trademark, logo URL or product name without KILOGEAR, Inc. ’s express written consent;
- Use. Service or Content, 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 or permitted expressly in writing by KILOGEAR, Inc.;
- 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 Service or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service or Content;
- 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 Service;
- Collect or store any personally identifiable information from the Service from other users of the Service without their express permission;
- Copy, use, index, disclose or distribute any information or data obtained from the KILOGEAR, Inc. Service, whether directly or through third parties (such as search engines), without KILOGEAR, Inc. ’s express written consent;
- Alter, replicate, store, distribute or create derivatives from the Content available via the KILOGEAR, Inc. Service except as expressly permitted in writing by KILOGEAR, Inc.;
- Impersonate or misrepresent your affiliation with any person or entity;
- Access, use or exploit the Service in any manner (other than as expressly permitted by these Terms), including to build, develop (or commission the development of), replicate, or consult upon any product or service that may compete (directly or indirectly) with KILOGEAR, Inc. or the Service;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Service or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Service and KILOGEAR, Inc.’s systems. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Service. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- Member Interactions, Dealings with Third Parties
When interacting with other KILOGEAR, Inc. members, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you don’t know. Your participation, correspondence or personal or business dealings with any third party found on or through the Service, whether regarding payment or delivery of specific goods and services, donations or fundraisers, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that KILOGEAR, Inc. is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings. In addition, when visiting or taking classes at any live session, please be advised that KILOGEAR, Inc. is not responsible for any lost or stolen items and that visitors, guests and members are required to adhere to then-current policies in place at that studio and the directions of that studio’s employees and representatives.
You agree to indemnify, defend, and hold harmless KILOGEAR, Inc. and its directors, officers, employees, and agents, from and against all claims, damages, losses and costs that arise from or relate to (i) your activities related to the Service.
- Third Party Software and Applications
Downloading and/or installing any third party software and/or applications that are not expressly authorized by KILOGEAR, Inc. on any KILOGEAR, Inc. hardware constitutes a breach of these Terms; any such downloading or installation is done at your own risk and may void any applicable warranty or support commitments by KILOGEAR, Inc.
- Third Party Links and Content
There may be links on the Service that let you leave the particular Service you are accessing in order to access a linked site that is operated by a third party. KILOGEAR, Inc. neither controls nor endorses these sites, nor has KILOGEAR, Inc. reviewed or approved the content that appears on them. KILOGEAR, Inc. is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such third party sites. You acknowledge and agree that KILOGEAR, Inc. is not responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the access or use of any of the links, content, goods or services available on or through these third party sites.
- No Warranties
KILOGEAR, Inc. reserves the right to modify the Service, including, but not limited to updating, adding to, enhancing, modifying, removing or altering any Content or features of the Service, at any time, in its sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Service.
KILOGEAR, Inc. provides the Service on an “AS IS” and “AS AVAILABLE” basis. You therefore use the Service at your own risk. Other than as expressly provided in writing by KILOGEAR, Inc. in connection with your purchase of a KILOGEAR, Inc. product, to the extent permitted by law, KILOGEAR, Inc. expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, quiet enjoyment and any other warranty that might arise under any law. Without limiting the foregoing, KILOGEAR, Inc. makes no representations or warranties:
- That the. Service is or will be permitted in your jurisdiction;
- That the Service will be uninterrupted or error-free;
- Concerning any Content;
- Concerning any third party’s use of User Content that you submit;
- That the Service will meet your personal or professional needs;
- That KILOGEAR, Inc. will continue to support any particular feature of the. Service; or
- Concerning sites and resources outside of the Service, even if linked to from the Service.
To the extent that another party may have access to or view Content 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 DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE KILOGEAR, INC. SERVICE, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
- Limitation of Liability
To the fullest extent permitted by law: (i) KILOGEAR, Inc. shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for loss of profits, economic or pure economic losses, goodwill, use, data, service interruption, computer damage, system failure, inability to use the Service or Content or other intangible losses, even if a limited remedy set forth herein is found to have failed its essential purpose; and (ii) KILOGEAR, Inc.’s total liability to you for all claims, in the aggregate, will not exceed the amount actually paid by you to KILOGEAR, Inc. over the 12 months preceding the date your first claim(s) arose. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of KILOGEAR, Inc.’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between KILOGEAR, Inc. and you.
- Safety Warnings
YOU SHOULD CONSULT YOUR PHYSICIAN OR GENERAL PRACTITIONER BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON THIS INFORMATION 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, GENERAL 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 READ ON THE KILOGEAR, INC. SITE OR HEARD ON THE SERVICE OR APP. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE OR APP IS SOLELY AT YOUR OWN RISK AND IS NOT MEDICAL OR HEALTHCARE ADVICE.
NOTHING STATED OR POSTED ON THE KILOGEAR, INC. SITE OR AVAILABLE THROUGH ANY KILOGEAR, INC. SERVICE OR APP 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. THE SERVICE OR APPS ARE CONTINUALLY UNDER DEVELOPMENT AND, TO THE FULL EXTENT PERMITTED BY LAW, KILOGEAR, INC. MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE KILOGEAR, INC. SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.
In becoming a user of KILOGEAR, Inc. with the intent of using the Service, you affirm that either (A) all of the following statements are true: (i) no physician or general practitioner has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician or general practitioner; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician or general practitioner is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise; or (B) your physician or general practitioner has been specifically consulted by you and approved of your use of the Service.
If applicable, you further affirm that (a) you are not pregnant, breastfeeding or lactating; unless (b) your physician or general practitioner has been specifically consulted and approved your use of the Service.
KILOGEAR, Inc. reserves the right to refuse or cancel your subscription if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect
- Intellectual Property Acknowledgment
You acknowledge and agree that your use of the Services or Apps and any Content contained therein is dependent upon you agreeing to and abiding by the KILOGEAR, Inc. Intellectual Property and DMCA Policy at all times. You further acknowledge that the Service contains software and other content that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All KILOGEAR, Inc. generated content, and content provided to KILOGEAR, Inc. by its partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws and all applicable international copyright (or equivalent) laws in all jurisdictions and protected under other intellectual property laws worldwide; further, as between you and KILOGEAR, Inc., KILOGEAR, Inc. own intellectual property rights in the selection, coordination, arrangement and enhancement of all content in the Service.
- ARBITRATION REQUIREMENT & CLASS ACTION WAIVER
- 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 or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and KILOGEAR, Inc. agree that the U.S. Federal Arbitration Act (or equivalent laws in the jurisdiction in which the KILOGEAR, Inc. entity that you have contracted with is incorporated) governs the interpretation and enforcement of these Terms and that you and KILOGEAR, Inc. 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 and Opt-out. As limited exceptions to Section 20(a) above: (i) you 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 respective intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by regular mail sent to the attention of KILOGEAR, Inc.’s Legal Department at the KILOGEAR, Inc. address set out in Section 24 below within 30 days following the date you first agree to these Terms.
- Initial Dispute Resolution and Notification. You agree that before initiating any Dispute or arbitration proceeding, we will attempt to negotiate an informal resolution of any dispute. To begin this process, before initiating any arbitration proceeding, you must send a Notice of Dispute (“Notice”) by certified mail to the attention of KILOGEAR, Inc. ’s Legal Department at the KILOGEAR, Inc. address set out in Section 24 below. In the Notice, you must describe the nature and basis of the Dispute and the relief you are seeking. If we are unable to resolve the Dispute within 45 days after KILOGEAR, Inc. ’s receipt of the Notice, then you or KILOGEAR, Inc. may initiate arbitration proceedings as set out below.
Conducting Arbitration and Arbitration Rules. Any arbitration will be conducted by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) then in effect, except as modified by these Terms. The JAMS Rules are available at www.jamsadr.com or by calling 1-800-352-5267. A party who wishes to start arbitration must submit a written Demand for Arbitration to JAMS and give notice to the other party as specified in the JAMS Rules. JAMS provides a form Demand for Arbitration at www.jamsadr.com. JAMS will appoint an arbitrator that is either (1) a retired federal or state court judge, or (2) an attorney who has been licensed to practice law in the state of Delaware for at least 10 years. The arbitration will be conducted by an in-person hearing, unless we both agree otherwise. If JAMS fails or declines to conduct the arbitration for any reason, we will mutually select a different arbitration administrator. If we cannot agree, a court will appoint a different arbitration administrator.
Any arbitration hearings will take place in the county (or other municipality) 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. During the arbitration, both you and KILOGEAR, Inc. may take one deposition of the opposing party, limited to 4 hours. If we cannot agree on a time and location for a deposition, the arbitrator will resolve any scheduling disputes.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If you assert a claim against KILOGEAR, Inc., you will be responsible for paying a $250 consumer filing fee. KILOGEAR, Inc. will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, KILOGEAR, Inc. will reimburse your initial filing fee. If we prevail in arbitration, we seek to recover fees associated with the arbitration 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.
- Class Action Waiver. YOU AND KILOGEAR, INC. AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN 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, neither JAMS nor the arbitrator may not consolidate another person’s claims with your claims or otherwise preside over any form of a representative or class proceeding for any purpose. If this specific provision is found to be unenforceable, then the entirety of this Section 20 shall be null and void.
- Effect of Changes on Arbitration. Notwithstanding the provisions of Section 25 “Modification”, if KILOGEAR, Inc. changes any of the terms of this Section 20 after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or the date of KILOGEAR, Inc. ’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 KILOGEAR, Inc. in accordance with the terms of this Section 20 as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Severability. With the exception of any of the provisions in Section 20(e) above, 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.
- Contracting Entities, Governing Law and Jurisdiction
Residents of the United Kingdom and Europe are contracting with KILOGEAR, Inc. These Terms shall be governed by the laws of the State of Delaware, United States of America, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply.
- Interpretation; Severability; Waiver; Remedies
Headings are for convenience only and shall not be used to construe these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by KILOGEAR, Inc. in exercising any right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of KILOGEAR, Inc. KILOGEAR, Inc.’s rights and remedies hereunder are cumulative and not exclusive.
- Successors; Assignment; No Third Party Beneficiaries
These Terms are binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without KILOGEAR, Inc.’s prior written consent. KILOGEAR, Inc. may assign its rights, obligations and/or these Terms at any time in its sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from KILOGEAR, Inc. electronically. KILOGEAR, Inc. may communicate by email or by posting to the KILOGEAR, Inc. Service. For support-related inquiries, you may email Support. For all other notices to KILOGEAR, Inc., write to the following addresses:
KILOGEAR, Inc., 2040 Lomita Blvd, Lomita, CA 90717.
Attn: Legal Department
Nothing in these Terms or otherwise limits KILOGEAR, Inc. ’s right to object to subpoenas, claims, or other demands.
We may update these Terms at any time, in our sole discretion. If we do so, we’ll let you know by, at a minimum, posting the updated Terms (as indicated by a revised “Last Updated” date at the top of this page) on the KILOGEAR, Inc. Site and/or through the Service. Modifications will be effective on the date that they are posted to the KILOGEAR, Inc. Site. It’s important that you review the Terms whenever we update them before you use the Service. If you continue to use the Service after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, then, except as otherwise provided in Section 20(f) “Effect of Changes on Arbitration,” you may not use the Service anymore. Because the Service is evolving over time we may change or discontinue all or any part of the Service, at any time and without notice, at our sole discretion.
- Entire Agreement
These Terms incorporate the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the KILOGEAR, Inc. Site from time to time:
- Membership Terms
- Return Policy
- Apparel Return Policy
- Intellectual Property and DMCA Policy
In the event of a conflict between any policies posted on the Service and these Terms, these Terms will control. These Terms represents the entire understanding between KILOGEAR, Inc. and you regarding the Service or Content and supersede all prior agreements and understandings regarding the same. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
- Force Majeure
Neither Party shall be liable for any failure or delay in performance under these terms (other than for delay in the payment of money due and payable in accordance with these terms) for causes beyond the party’s reasonable control and not caused by that party’s fault, or negligence, including, but not limited to, “acts of God”, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility, but in each case, only if and to the extent that the non-performing Party is without fault in causing such failure or delay, and the failure or delay could not have been prevented by reasonable precautions and measures and cannot reasonably be circumvented by the non-conforming Party through the use of alternate sources, workaround plans, disaster recovery, business continuity measures or other means. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.