Terms of Service

Effective as of December 1, 2025

PLEASE READ THIS LEGAL DOCUMENT CAREFULLY. Fiture Holding LLC (together with our affiliates, “FITURE”, “we” or “us”) provides an online fitness instruction and related products, services, content and features, including through our websites and its subdomains (the “Site”), our fitness device (such as Atom, a fitness companion) through which our services are accessed (the “Device”), our mobile application (the “BodyPark ATOM” or “Application”) and FITURE controlled social media pages (together with the Site, the Device, and the Application, the “Services”). By registering as a member or by visiting, browsing, purchasing from, or using BodyPark ATOM in any way, you (as a “User”) accept these Terms of Service, including those set forth in the Privacy Policy and Subscription Terms (collectively,the “Terms”), which forms a binding agreement between you and FITURE.

By downloading, purchasing or using BodyPark ATOM, (i) you agree to be bond by the Terms, (ii) you are of legal age and not prohibited by law from receiving or using the Services. If you disagree with any part of the Terms, then you may not access the Services.

PLEASE BE AWARE THAT BODYPARK ATOM DOES NOT PROVIDE MEDICAL ADVICE. YOUR PARTICIPATE IN EXERCISE ACTIVITIES ENTIRELY AT YOUR OWN RISK. IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU COMPLY WITH ALL APPLICABLE LEGAL RESTRICTIONS IN YOUR JURISDICTION.

 

1.       WHO MAY USE THE SERVICES

You must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to register with and use the Services. Minor between the ages of 13 and 18 years old may participate in certain aspects of the Services provided that such individuals:

  • Have been cleared to participate by their physician;
  • Have permission to participate from a parent or legal guardian who will provide supervision and that such parent or legal guardian agrees to be bound by the Terms;
  • Abide by all Safety Warning in the applicable User Manual; and
  • Rest, hydrate and modify as needed.

If you choose to permit a minor under the age of 18 to use the Services with you, you acknowledge and agree that you are solely responsible for such minor and must supervise them at all times whiling using the Services. You also agree to be fully responsible for the acts and omissions of such minor in connection with the Services.

We may, in our sole discretion, refuse to offer the Services to any person or entity and change the eligibility criteria at any time. You are solely responsible for ensuring that you comply with all applicable law, rule and regulation related to the Terms, and the right to access and use the Services is revoked where the Terms or use the Services is prohibited or conflicts with any applicable law, rule or regulation.

 

2.       ACCOUNT AND SUBSCRIPTION

2.1.   Account. To enjoy full access to the content and features of the Services through BodyPark ATOM, you will need to create an account with us. To create an account, you will need to provide us with some personal information, such as your email address, Apple account or Google account, and password. You must provide accurate and complete information and keep it updated. If you provide any information that is untrue, inaccurate, not current or incomplete, or FITURE has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, FITURE has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must safeguard the security and confidentiality of your account and password. You must not share your account or password with anyone else. If you become aware of an unauthorized access to your account or any other breach of security, we recommend that you immediately change your password.

2.2.   Subscription. BodyPark ATOM is free to download and use for basic features. However, if you want to access certain premium features and benefits of BodyPark ATOM, such as unlimited usage of AI Agentic coach,personalized training plans, Post-work insight reports and increased monthly video cloud storage, you will need to register as a Member of BodyPark ATOM and purchase a subscription (a “Subscription”). We offer different Subscription plans with different prices, durations, and benefits. You can view the current Subscription plans and prices on BodyPark ATOM. We may change the Subscription plans and prices at any time at our sole discretion. Any changes will not affect your existing Subscription until it expires or is renewed. Each Subscription is governed by the [Subscription Terms].

 

3.       LICENSE AND RESTRICTIONS

3.1.   License. Subject to your compliance with these Terms, we grant you a limited, non-transferable, non-exclusive, revocable license to download and use BodyPark ATOM for your own personal, non-commercial use and for no other purpose whatsoever,a right which may not be assigned or sublicensed to anyone else.

3.2.   Update. You understand that BodyPark ATOM is evolving. As a result, we may require you to accept updates to BodyPark ATOM. You acknowledge and agree that we may update BodyPark ATOM with or without notifying you.

3.3.   Restrictions. Except as expressly permitted in writing by an authorized representative of FITURE, you may not (i) copy, modify, distribute, sell or lease BodyPark ATOM, the Device or its content; (ii) create derivative works from, decompile, reverse engineer, disassemble or attempt to extract the source code of BodyPark ATOM or the Device; (iii) remove any copyright or other proprietary notices from BodyPark ATOM, the Device or its content; (iv) use BodyPark ATOM or the Device in any way that may interfere with or damage its functionality or performance; (v) use BodyPark ATOM or the Device to transmit any virus, malware, or other harmful code; (vi) use BodyPark ATOM or the Device to infringe the rights of any third party, including their privacy, intellectual property, or contractual rights.

 

4.       PRIVACY

We respect your privacy and are committed to protect your personal data. Our Privacy Policy is an integral part of these Terms, and by using the Services, you acknowledge and accept the practices described within it. Please review the Privacy Policy carefully to learn about:

  • What information we may collect;
  • What we use that information for; and
  • With whom we share that information.

 

5.       CONTENT AND SERVICES

5.1.   BodyPark ATOM provides you with various content and services related to fitness, such as (i) real-time voice counts, where you can hear instant cues for reps, rhythm, and rest through the Device’s speakers, keeping you motivated and in flow without checking the screen; (ii) AI coach with real-time feedback, where you can get a real-time form correction; (iii) post workout reports, where you can get an in-depth report from your movement data, tracking progress, revealing hidden patterns, and offering insights far beyond simple rep counts; and (iv) smart adaptive planning, where you can get 1,000+ expertly defined exercises, and the AI Agent can creates personalized workouts built around your history, preferences, and goals with flexible input method.

5.2.   We reserve the right to modify, suspend, or discontinue any content or service, in whole or in part, at any time, with or without notice. We are not liable to you or any third party for any modification, suspension, or discontinuance of any content or service.

 

6.       USER CONTENT AND CONDUCT

6.1.   Any video, image, graphics, photos, text, audio recording, content, materials, information, data, messages, tags, or other materials and works that a user uploads, posts, e-mails, transmits or otherwise made available through the Services, especially any audio or video feed content transmitted through the Services when your Device camera is on (“User Content”). Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You acknowledge that all content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. To the full extent permitted by law, we make no representations, warranties or guarantees with respect to any content, including without limitation User Content, that you make available or access on or through the Services.

6.2.   You retain ownership of your User Content, but you grant FITURE a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable, royalty-free license and right (including any moral rights) to use, copy, record transmit, distribute, perform and display (through all media now known or later created), edit, modify, and make derivative works from your User Content (including, without limitation, translations) for the purposes whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.

6.3.   You represent and warrant that (i) you own or have the necessary rights and permission to use and authorize us to use your User Content as described in these Terms; (ii) your User Content does not infringe any intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party; (iii) your User Content does not contain any unlawful, harmful, abusive, defamatory, obscene, hateful, harassing, threatening, racist, sexist, or otherwise objectionable material.

6.4.   You agree that you will not (i) upload, post, share, or transmit any User Content that violates these Terms or any applicable laws or regulations; (ii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity; (iii) solicit personal information form other users or send unsolicited messages or advertisements to other users; (iv) interfere with or disrupt the operation of BodyPark ATOM or the servers or networks that host BodyPark ATOM or the Device; (v) attempt to gain unauthorized access to BodyPark ATOM or the Device, or any other accounts, systems, or networks connected to BodyPark ATOM or the Device; (vi) use any automated means to access BodyPark ATOM or the Device for any purpose; (vii) use BodyPark ATOM or the Device for any purpose that is competitive to us or otherwise detrimental to us.

6.5.   You agree that before using your Device camera, you are responsible for telling anyone within range of your Device’s camera, that they may be recorded. You may not post or submit a photograph of another person, or otherwise make available any of your User Content that includes the likeness of or audio or video content including another person without that person’s permission (or, if that person is minor, without the permission of his or her parent or legal guardian). If you permit any minors to be within range of your Device’s camera or microphone while you’re using the Device, you consent on their behalf, to the fullest extent permitted by law, to our use of their likeness and any other information collected through your Device camera or microphone in accordance with these Terms.

 

7.       INTELLECTUAL PROPERTY OWNERSHIP

7.1.   FITURE’s Copyright. Except with respect to your User Content and other User Content, you acknowledge and agree that FITURE owns all right, title, and interest in and to the Services, the content, trademarks, copyrights, patents, and any other audio-visual or static content, photographs, audio, images, illustrations, graphics, software, features, code, data, materials and information displayed on or otherwise made available through the Services, other than content that has been licensed to us by third parties.

Nothing contained on the Services or in these Terms should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trademarks or other intellectual property without our express prior written consent.

You may not use any trademarks, logos or service marks displayed on the Services. You may not remove, obscure, or alter any legal notices displayed on the Services.

7.2.   User’s Copyright. FITURE respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe or misappropriate any third party copyright or other intellectual property rights.

It is FITURE’s policy to terminate membership privileges of any user who repeatedly infringes copyright upon prompt notification to FITURE by the copyright owner or the copyright owner’s legal agent. 

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information:

  1. Your name, address, telephone number, and email address.
  2. A description of the copyrighted work that you claim has been infringed.
  3. A description of where on the Site the material that you claim is infringing may be found, sufficient for FITURE to locate the material (e.g., the URL).
  4. A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law.
  5. A statement by you under penalty of perjury that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
  6. Your electronic or physical signature.

You may submit this information, or any counter notice,with the subject line “DMCA Notices” to us at cs@fiture.com.

FITURE may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.

If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information.

 

8.       INVESTIGATION; RESERVATION OF RIGHTS

8.1.   Although we do not monitor user activity or pre-screen any User Content submitted to the Services by any user, but we do reserve the right (but not the obligation) to monitor all conduct on and content submitted to the Services and investigate any possible violations of these Terms or any applicable laws or regulations.

8.2.   FITURE reserves the right to: (a) remove, modify or refuse to post any of your User Content for any or no reason in our sole discretion; (b) take any action with respect to any of your User Content that we deem necessary or appropriate in our sole discretion, including if we believe that such content violates these Terms, infringes or otherwise violates any intellectual property, proprietary, privacy, or publicity rights of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for FITURE; (c) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms.

8.3.   FITURE is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including your User Content, in FITURE’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce these Terms, (iii) respond to any claims that your User Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of FITURE, its users or the public, and all enforcement or other government officials, as FITURE in its sole discretion believes to be necessary or appropriate.

 

9.       THIRD PARTY CONTENT AND SERVICES

9.1.   BodyPark ATOM may display or provide links to third-party content or services, such as websites, apps, or devices. We do not endorse or control any third-party content or services and we are not responsible for their availability, quality, reliability, or legality. Your access and use of any third-party content or services is solely at your own risk and subject to the terms and conditions of those third parties.

9.2.   BodyPark ATOM and the Device may also allow you to connect with other compatible devices or apps (such as Apple Watch, Samsung Galaxy Watch, Google Pixel Watch) to sync your health data and access additional features. We do not endorse or control any such devices or apps and we are not responsible for their functionality, compatibility, or performance. Your access and use of any such devices or apps is solely at your own risk and subject to the terms and conditions of those device or app providers.

9.3.   You acknowledge and agree that the availability of BodyPark ATOM is dependent on the third party from whom you received the application license, e.g., the Apple App Store, the Google Play Store (the “App Store”). You acknowledge and agree that:

  1. These Terms are between you and FITURE and not with the App Store, and FITURE, not the App Store, is solely responsible for BodyPark ATOM, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement).
  2. In order to use BodyPark ATOM, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with BodyPark ATOM.
  3. In the event of any failure of BodyPark ATOM to conform to any applicable warranty, you may notify the App Store and the App Store will refund the purchase price for BodyPark ATOM to you (if applicable) and to the maximum extent permitted by applicable law, the App Store will have no other warranty obligation whatsoever with respect to BodyPark ATOM. As between FITURE and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of FITURE.
  4. The App Store is not responsible for addressing any claims you have or any claims of any third party relating to BodyPark ATOM or your possession and use of BodyPark ATOM, including, but not limited to: (i) product liability claims; (ii) any claim that BodyPark ATOM fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
  5. In the event of any third-party claim that BodyPark ATOM or your possession and use of BodyPark ATOM infringes that third party’s intellectual property rights, as between FITURE and the App Store, FITURE, not the App Store, 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.
  6. The App Store and its subsidiaries, are third-party beneficiaries of these Terms as related to your license of BodyPark ATOM, and that, upon your acceptance of these Terms, the App Store will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of BodyPark ATOM against you as a third-party beneficiary thereof.
  7. Without limiting any other terms of these Terms, you must comply with the all applicable third party terms of service when using BodyPark ATOM.

 

10.    TERM AND TERMINATION

10.1.           Term. These Terms commence on the date when you accept it (as described in the preamble above), or on the date you first used the Services if earlier, and remains in full force and effect while you use any of the Services unless terminated earlier in accordance with these Terms.

10.2.           Termination. FITURE may, in our sole discretion, suspend, disable, or terminate your account (or any part thereof) or block or remove any of any User Content that you submitted, for any lawful reason, including if FITURE determines, in our sole discretion, that you have violated these Terms or that your conduct or your User Content would tend to damage FITURE’s reputation or goodwill.

You may delete your account at any time by contacting our Support Team or from inside BodyPark ATOM.

10.3.           Effect of Termination/Account Deletion. Upon deleting your account, you will be unable to access all the features of the Services and will be unable to re-register using the same email address or Apple account or Google account. In the event of account deletion for any reason, your User Content may no longer be available and FITURE is not responsible for the deletion or loss of such User Content. You acknowledge that you will not receive any refund or credit for any unused portion of your Subscription.

All provisions of these Terms which by their nature should survive, shall survive termination of the Services, including without limitation, Privacy (section4), Use Content and Conduct (section6), Intellectual Property Ownership(section7), Indemnification (section11), Safety Warnings(section 13), Limitation of Liability(section 14), Arbitration Clause & Class Action Waiver(section 15), Governing Law(section 16), and all general provisions.

 

11.    INDEMNIFICATION

You (and also any third party for whom you operate an account or activity on the Services) agree to indemnify, defend and hold harmless FITURE and our directors, officers, employees, suppliers, other customers, and agents (collectively“FITURE Parties”) from and against all claims, damages, losses, and costs (including reasonable attorneys’fees) that arise out of or in connection with

  1. your use of, or inability to use, the Services;
  2. any User Content submitted by or on behalf of you;
  3. your violation of these Terms;
  4. your violation of any rights of another party, including another user of the Services; or
  5. your violation of any applicable laws, rules, or regulations.

FITURE reserves the right, at our own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with FITURE in asserting any available defenses. This provision does not require you to indemnify any of the FITURE Parties for any unconscionable commercial practice by such FITURE Party or for its fraud, deception, false promise, misrepresentation, or concealment, or suppression or omission of any material fact in connection with the Services.

 

12.    DISCLAIMER OF WARRANTIES

FITURE provides the Services on an “AS IS” and “AS AVAILABLE” basis, with all faults, and your use the Services is at your own, sole risk. No advice or information, whether oral or written, provided by FITURE or a FITURE instructor will create any warranty not expressly made herein. OTHER THAN AS EXPRESSLY PROVIDED IN WRITING BY FITURE IN CONNECTION WITH YOUR PURCHASE OF THE DEVICE, TO THE EXTENT PERMITTED BY LAW, FITURE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, USAGE OF TRADE AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDER ANY LAW WITH RESPECT TO THE SERVICES, THE CONTENT OR ANY OTHER SUBJECT MATTER OF THESE TERMS.

 

13.    SAFETY WARNINGS

13.1.           Professional Advice Disclaimer. THE CONTENT AND SERVICES OFFER HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT A DOCTOR OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL BEFORE STARTING, CHANGING, OR STOPPING ANY FITNESS PROGRAM OR REGIMEN. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN OR VIA THE SERVICES, INCLUDING INFORMATION AND PROGRAMS TAILORED SPECIFICALLY FOR YOU, AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A DOCTOR OR OTHER QUALIFIED HEALTH CARE PROFESSIONAL. DO NOT DISREGARD, AVOID, OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH CARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SERVICES OR COMMUNICATED TO YOU THROUGH THE SERVICES. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICES IS SOLELY AT YOUR OWN RISK.

NOTHING STATED OR POSTED ON THE SERVICES OR 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. THE SERVICES ARE CONTINUALLY UNDER DEVELOPMENT AND FITURE 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 ON THE SERVICES. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SERVICES WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

13.2.           Medical Disclaimer. In using the Services, you affirm that either your physician has approved your use of the Services or that all of the following statements are true: (i) you are not over 65 years old; (ii) you are not during pregnancy, breastfeeding or lactating; (iii) no physician has ever informed you that you have a heart condition, chronic disease or that you should only do physical activities recommended by a physician; (iv) you have never felt chest pain when engaging in physical activity; (v) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (vi) you have never lost your balance because of dizziness and you have never lost consciousness as a result of exertion;(vii) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (viii)your physician is not currently prescribing drugs for your blood pressure or heart condition; (ix) you do not have a history of high blood pressure; and (x) 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.

13.3.           All plans, workouts, routines and exercises provided by FITURE are illustrative only and serve only as a form of guidance to what should be done and should not be regarded as final or unequivocal recommendations. Although the AI Coach can learn more about the user, it is not aware of the user’s limitations, executions, difficulties, pains, injuries, or any health condition. FITURE is not responsible for any accidents, injuries, or any other damage that may occur to your health when using and performing the workouts BodyPark ATOM suggests, or following its suggestions.

13.4.           You acknowledge that the final decision of which exercises you need to do, how many sets, repetitions, weight, duration, and how to properly do them, is always yours. So do not overdo it when exercising. If you feel any kind of pain, weakness, dizziness, exhaustion, or get short of breath, stop exercising immediately.

 

14.    LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW(AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS), IN NO EVENT SHALL WE, OUR AFFILIATES, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, INABILITY TO USE THE SERVICES OR OTHER INTANGIBLE LOSSES OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (IN EACH CASE WHETHER OR NOT FITURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITY OR DAMAGE ARISING OUT OF ANY DEVICE, THE CONTENT OR ANY COMMUNICATIONS, INTERACTIONS, ON ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

YOU UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE LIABILITY OF FITURE (AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS AND AGENTS) TO YOU OR ANY OTHER PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITY OR DAMAGE ARISING OUT OF ANY PRODUCT, THE CONTENT OR ANY COMMUNICATIONS, INTERACTIONS, WILL NOT EXCEED, IN THESE TERMS (FOR ALL CLAIMS), THE GREATER OF (A) THE TOTAL AMOUNT ACTUALLY PAID BY YOU TO FITURE OVER THE TWELVE (12) MONTHS PRECEDING THE DATE YOUR FIRST CLAIM AROSE, AND (B) FIVE HUNDRED DOLLARS ($500).

Nothing in these Terms and, in particular, within this “Limitation of Liability” clause, shall be interpreted or construed to limit or exclude liability that cannot be so limited or excluded under applicable law. If you live in a jurisdiction that does not allow certain exclusions or limitations of liability, certain of the above exclusions or limitations may not apply to you. For example, this limitation of liability shall not apply to any willful, wanton, intentional or reckless misconduct of FITURE or gross negligence of FITURE in those states that do not permit limitation of liability for such misconduct or gross negligence. To the extent that any aspect of the limitations set forth above does not apply under law, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between FITURE and you.

 

15.    ARBITRATION CLAUSE & CLASS ACTION WAIVER - IMPORTANT – PLEASE REVIEW THIS SECTION CAREFULLY AS THIS MAY AFFECT YOUR LEGAL RIGHTS. FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. THIS SECTION IS APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW.

15.1.           Mandatory Arbitration of Dispute. You and FITURE 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 any products sold or distributed through the Services, or to any aspect of your relationship with FITURE (collectively, “Dispute”) will be resolved solely and exclusively by binding, individual arbitration and not in a class, representative or consolidated action or proceeding, except that (i) you and FITURE may each assert claims or seek relief in small claims court if such claims or relief qualify; (ii) you and FITURE may each seek an individualized preliminary injunction or temporary restraining order, pending arbitration, in any court that has jurisdiction; (iii) each party may bring issues to the attention of federal, state or local governmental agencies (and such agencies can, if the law allows, seek relief against the applicable party); and (iv) you or FITURE may seek injunctive or other equitable relief in court for infringement or other misuse of intellectual property rights or confidential information (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).

Subject to the foregoing specific exceptions, the terms and conditions of this entire Section15 (ARBITRATION CLAUSE & CLASS ACTION WAIVER) (the “Arbitration Agreement”) shall apply, without limitation, to all disputes or claims and requests for relief that (i) arose or were asserted before the effective date of these Terms or any prior version of these Terms, and/or (ii) are brought by or against our respective subsidiaries, parent companies, members and affiliates, as well as the respective officers, directors, employees, agents, predecessors, successors and assigns of FITURE or these entities.

15.2.           Arbitration Rules and Forum. The U.S. Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement as the overall Terms evidences a transaction in interstate commerce. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent, the Vistra Incorporations (Delaware) Limited, at 1013 Centre Road, Suite 403S, Wilmington, DE 19805. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider, with a single arbitrator. FITURE may initiate an arbitration proceeding against you by providing you with notice of the Dispute, which notice may be provided to your account contact information on file with FITURE. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will utilize the American Arbitration Association (“AAA”) under the AAA’s then-current rules, or if the AAA is also not available, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, or hearing fees and cannot obtain a waiver from JAMS, FITURE will pay them for you. You may choose to have the arbitration conducted by telephone, video or online conferencing based on written submissions, or at a mutually agreed location. To the extent the arbitration is to be held in-person and the parties have not mutually agreed to a location (or such consent is otherwise required for the arbitration to proceed), you hereby consent to the jurisdiction and venue of both New York City, New York, and Wilmington, Delaware, for purposes of holding, administering and enforcing arbitration proceedings hereunder. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

15.3.           Authority of Arbitrator. The arbitration will decide the rights and liabilities, if any, of you and FITURE with respect to any Dispute. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or other Dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. 

15.4.           Waiver of Jury Trail. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND FITURE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY WITH RESPECT TO ANY DISPUTES. You and FITURE are instead electing that all claims, or requests for relief or other Dispute shall be resolved by arbitration under this Arbitration Agreement, except as specified under the “Mandatory Arbitration of Dispute”section above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

15.5.           Waiver of Class Action or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given Dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of New York. All other disputes, claims, or requests for relief shall be arbitrated. 

15.6.           30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to cs@fiture.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address or other account you used to set up your BodyPark ATOM account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us. If you do not notify FITURE of your decision to opt out in accordance with the foregoing, you agree to be bound by the arbitration and waiver provisions of this Arbitration Agreement.

15.7.           Severability. Except as provided under the “Waiver of Class or Other Non-Individualized Relief” section above, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

15.8.           Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with FITURE, including without limitation any termination of these Terms.

15.9.           Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if FITURE makes any future material change to this Arbitration Clause, you may reject that change within thirty (30) days of such change becoming effective by sending an email to FITURE at cs@fiture.com.

 

16.    GOVERNING LAW

These Terms and any claim or request for relief or other Dispute relating in any way to these Terms or its subject matter will be governed by the laws of State of Delaware, United States of America, without giving effect to any conflicts of law or choice of law rules or principles that would require the application of the law of any other jurisdiction. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply to these Terms or its subject matter and are all hereby excluded and disclaimed. Subject to the Arbitration Agreement in Section15, any other action arising out of or relating to these Terms or your use of the Services must be commenced in the state or federal courts located in Delaware, United States of America, and you hereby consent to the jurisdiction and venue of those courts.

 

17.    GENERAL PROVISIONS

17.1.           Interpretation; Severability; Waiver; Remedies. Headings are for convenience only and will not be used to construe the terms of these Terms. If any clause of these Terms is found invalid or unenforceable by any court or arbitrator of competent jurisdiction, that clause will be severed from these Terms to the extent of such invalidity or unenforceability and the remainder of these Terms shall remain in full force and effect. No failure or delay by FITURE in exercising or enforcing any right, provision or remedy hereunder will constitute a waiver thereof or waive any further exercise or enforcement of that right, provision or remedy. All waivers by FITURE must be in writing signed by an authorized representative of FITURE to be effective hereunder. FITURE's rights and remedies hereunder are cumulative and not exclusive.

17.2.           Successors; Assignment; No Third Party Beneficiaries; Independent Contractors. The Terms is 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, delegate or transfer these Terms without FITURE’s prior written consent. Any purported assignment or delegation by you without the appropriate prior written consent of FITURE will be null and void. Unless explicitly stated otherwise, no third party has any rights hereunder. FITURE may assign our rights and/or obligations hereunder, and/or these Terms, at any time in our sole discretion without notice to you. You and FITURE are independent contractors and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.

17.3.           Notices. You consent to receive all communications including notices, agreements, disclosures, or other information from FITURE electronically. FITURE may communicate with you by email, through your account with FITURE (if any) by posting to the Services or other reasonable manner. For support-related inquiries, you may email cs@fiture.com. For all other notices to FITURE, you must write to the following address:

Fiture Holding LLC

cs@fiture.com

Attn: Legal at Fiture Holding LLC

Nothing in the Terms or otherwise limits FITURE’s right to object to subpoenas, claims, or other demands. For contractual purposes, you (a) consent to receive communications from FITURE in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that FITURE provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C.§7001 et seq. (“E-Sign”).

17.4.           Force Majeure. FITURE shall not be liable for any delay or failure to perform or comply with its obligations under this Terms resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, pandemics, epidemics, or governmental orders.

17.5.           Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: Fiture Holding LLC, cs@fiture.com, Attn: Legal at Fiture Holding LLC. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation. If you are a resident of California, USA, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them, in writing, at 400 R Street, Sacramento, CA 95814, USA, or by telephone on (800) 952-5210.

17.6.           Export Control. By using the Services, you represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that products, services or technology provided by FITURE are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer BodyPark ATOM, Devices, Services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

17.7.           Entire Agreement. The Terms incorporates the Terms of Service document, any Supplemental Terms and the following legal documents by reference, as well as any other policies or procedures referenced herein that are posted to the Services from time to time:

If there is a conflict between any policies or procedures posted on the Services and the terms of this Terms of Service document or the legal documents listed above, the terms of this Terms of Service document will control and take precedence, followed by the legal documents listed above in the order listed. The Terms represents the entire understanding and agreement between FITURE and you with respect to the subject matter hereof and supersedes all prior agreements, arrangements and understandings regarding the same.