Last Updated: February 21, 2020
Welcome, and thank you for your interest in Equinox Media LLC (together with our affiliates, “Equinox Media,” “we,” “our,” and/or “us”). Equinox Media makes and offers connected fitness products, including the SoulCycle at-home bike (the “Bike”) and other products and related accessories that we may develop or offer from time to time (collectively referred to as the “Product”), as well as provides our service, which offers digital fitness and training content and various other functions, including through our mobile application, the interfaces on tablets connected to the Bike and other Products and through certain third-party platforms and Internet-connected TVs, computers and other devices (collectively, the “Service”). To use certain features of the Bike and other Products, you must register for an account (“Account”) and subscribe to the Service. The Product and Service, along with our website at www.variis.com and related websites, blogs or other digital properties (the “Sites”), are referred to collectively as the “Offering.”
These Terms and Conditions (these “Terms”) are a legally binding contract between you and Equinox Media regarding your purchase and use of any Product or the Service and your use of any of the Sites.
PLEASE READ THE FOLLOWING TERMS CAREFULLY
ARBITRATION NOTICE AND CLASS ACTION WAIVER. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms (including any dispute arising from your purchase or use of any part of the Offering) will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND EQUINOX MEDIA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 17.)
RELEASE AND WAIVER OF LIABILITY AND ASSUMPTION OF RISK. You should be aware that these Terms includes a release and waiver of liability and an assumption of risk to use the Offering. You understand that by entering into these Terms you are giving up rights that may otherwise be available to you.
Use of the Service.
Eligibility. You must be at least sixteen (16) years old to use the Offering, and at least eighteen (18) years old to make a purchase. If you are under eighteen (18), you must have the consent of your parent or guardian on your behalf and only use the Offering under their direct supervision. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least sixteen (16) years old; (b) are a resident of the United States; (c) you have not previously been suspended or removed from the Offering; (d) you have full power and authority to enter into these Terms and in doing so you will not violate any other agreement to which you are a party; and (e) your registration and your use of the Offering is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
Health and Safety Risks. Please read the following section carefully as it discusses important risks to your health and safety, as well as your acceptance and assumption of those risks. BY ACCESSING THE OFFERING, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE AS FOLLOWS:
Your use of the Offering may involve strenuous physical exercise and activity that is potentially hazardous and dangerous and may involve significant physical and emotional stress and exertion. Such exercise and activity inherently poses a significant risk of injury, including serious injuries such as paralysis and/or possibly death. The Offering is intended for use only by individuals healthy enough to perform strenuous exercise, including strength, flexibility, speed and endurance-based physical activities. YOUR USE OF THE OFFERING AND PERFORMANCE OF ANY AND ALL EXERCISES AND ACTIVITIES DURING USE OF THE OFFERING, INCLUDING AS MAY BE RECOMMENDED BY THE OFFERING, IS WHOLLY AT YOUR OWN RISK, AND YOU HEREBY AGREE TO EXPRESSLY ASSUME AND ACCEPT ANY AND ALL KNOWN AND UNKNOWN RISKS AND RESPONSIBILITY OF INJURY, PHYSICAL HARM OR DEATH ARSING FROM YOUR USE OF THE OFFERING, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
YOU SHOULD CONSULT WITH YOUR PHYSICIAN PRIOR TO TAKING PART IN ANY EXERCISE OR PHYSICAL ACTIVITY. RESPONSIBILITY FOR DOING SO, AND FOR PERIODICALLY REVIEWING THE STATUS OF YOUR HEALTH AND EXERCISE PROGRAM WITH A PHYSICIAN, IS SOLELY AND EXCLUSIVELY YOUR OWN RESPONSIBILITY AND NOT THE RESPONSIBILITY OF EQUINOX MEDIA. EQUINOX MEDIA IS NOT A MEDICAL ORGANIZATION, AND OUR EXERCISES, ACTIVITIES, INFORMATION AND OTHER CONTENT DO NOT CONSTITUTE MEDICAL ADVICE, TREATMENT, PRESCRIPTIONS OR DIAGNOSES. THE OFFERING OFFERS HEALTH AND FITNESS INFORMATION THAT IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD NOT RELY ON ANY HEALTH AND FITNESS INFORMATION PROVIDED BY THE OFFERING AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH-RELATED ADVICE FROM YOUR PHYSICIAN BECAUSE OF SOMETHING SET FORTH IN THE OFFERING.
Nothing provided or available through the Offering is intended to be, and nothing must 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, physiotherapy, physical therapy, psychiatry, psychology, psychotherapy, or providing health care treatment, instructions, diagnosis, prognosis or advice. The Offering is continually under development and, to the full extent permitted by applicable law, Equinox Media 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 is available through the Offering. No assurance can be given that the advice and other content contained in the Offering will always include the most recent findings or developments.
In becoming a user of the Offering, you affirm and represent that either:
all of the following statements in subclauses (i) through (xi) are true: (i) you are of sound mind and body and do not suffer from any illness, impairment, disease or other condition that would prevent you from safely using the Offering; (ii) no physician, general practitioner or other medical care provider 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; (iii) you have never felt chest pain at rest or during physical activity; (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; (viii) you do not have a medical, physical or mental condition that would prevent you from properly and safely using the Offering or put you in any physical or medical danger as a result of participating in the Offering; (ix) you agree to follow the recommendations of medical professionals regarding engaging in exercise; (x) you are not pregnant, breastfeeding or lactating; and (xi) you do not know of any other reason you should not, or are limited with respect to, exercise; or
your physician or general practitioner has been specifically consulted by you with respect to your use of the Offering and the physician or general practitioner has approved of your use of the Offering. If any of the statements in the foregoing subclauses (A)(i) through (A)(xi) ceases to be true at any time, you acknowledge and agree that you must cease using the Offering until your physician or general practitioner has been specifically consulted by you with respect to your use of the Offering and has approved of your use of the Offering.
You should discontinue exercise in cases where it causes pain or severe discomfort, and should consult a medical expert prior to returning to exercise in such cases. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
You have read, thoroughly understand and will comply with the Bike’s Safety Instructions that are displayed on the Bike and as posted on Equinox Media’s website at all times when operating the Bike. You will also comply with all other operating and safety instructions and guidance provided to you on the Sites, in the User Manual and provided verbally by instructors through the Service at all times. Notwithstanding the foregoing, in the event following any such instructions or guidance would conflict with the advice of your physician or other medical practitioner or would cause you pain or severe discomfort, discontinue use of the Bike immediately.
The SoulCycle class content included on the Service, and all maneuvers performed in connection with such SoulCycle class content, have been designed to be performed solely on the Bike in accordance with the Bike’s Safety Instructions. The Bike has been specifically designed to accommodate the maneuvers performed in connection with the SoulCycle class content, and we make no representations or warranties with respect to the safety, stability or suitability of any third-party equipment for these purposes. YOU ARE NOT AUTHORIZED TO USE, YOUR LICENSE TO USE THE SERVICE DOES NOT INCLUDE THE RIGHT TO USE, AND EQUINOX MEDIA DOES NOT APPROVE AND RECOMMENDS AGAINST THE USE OF, SOULCYCLE CLASS CONTENT OR THE PERFORMANCE OF ANY MANEUVERS IN CONNECTION WITH THE SOULCYCLE CLASS CONTENT WITH ANY THIRD-PARTY EQUIPMENT. YOUR USE OF ANY SUCH THIRD-PARTY EQUIPMENT, AND PERFORMANCE OF ANY ACTIVITIES OR MANEUVERS IN CONNECTION THEREWITH, IS WHOLLY AT YOUR OWN RISK, AND YOU HEREBY AGREE TO EXPRESSLY ASSUME AND ACCEPT ANY AND ALL RISKS AND RESPONSIBILITY OF INJURY, PHYSICAL HARM OR DEATH ARISING IN CONNECTION WITH ANY THIRD-PARTY EQUIPMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Accounts and Registration.
Account Creation. To access most features of the Offering, including the purchase of any Product or to access the Service, you must have a registered Account. In order to register an Account, you will be required to provide us with some information about yourself, such as your name, email address, or other contact information. By creating an Account, you agree that the information you provide to us is accurate, current and complete, and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your Account and password, and you accept responsibility for all activities that occur under your Account. If you believe that your password has been compromised or your Account is otherwise no longer secure, then you must immediately notify us at firstname.lastname@example.org and change your password as soon as possible. You may not provide your password or Account credentials to any other person or use any other person’s username and password. You further understand and agree that Equinox Media may take actions we deem reasonably necessary to prevent, respond to, pursue or remedy suspected or actual fraud and abuse, including without limitation, termination or suspension of your Account.
Push Notifications. When you install our application on your mobile device, you agree to receive push notifications, which are messages an application sends you on your mobile device when the application is not on. Discontinuing push notifications typically requires you to change your settings on your mobile device. Each type of device operates differently, so you should check the user manual of your mobile device if you’re having trouble.
Automated Messaging. By providing your mobile phone number to us through the Sites or in connection with your order, receipt or use of any Product or the Service, you consent to receive calls or text messages at any such phone number sent by or on behalf of Equinox Media, including autodialed calls and/or text messages, for transactional or operational purposes, such as updates on the delivery status of your order of our Product. You may opt out of calls or messages by following the applicable unsubscribe instructions provided to you. Following such opt-out, you may continue to receive calls or messages for a short period of time while Equinox Media processes your request. It is your responsibility to keep your Account information, including your phone number, updated. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. Please contact your mobile phone carrier for details.
Test Features. We continually test new functionalities, services, options, initiatives, user interfaces, products and other features that we are considering developing, adding or incorporating into the Offering (collectively, “Test Features”). We reserve the right, in our sole discretion, to include or exclude you, from these tests without notice and to discontinue or to modify any Test Feature at any time, for any or no reason, without prior notice and with no liability, to the fullest extent permitted by applicable law. Without limiting the foregoing, from time to time we may also conduct tests through a formal Beta Program (as defined in Section 11), which will be governed by the terms described in Section 11.
General Purchase Terms.
Availability. Equinox Media accepts orders for the Product and the Service that we may offer through the Sites. Purchases of the Product and the Service are subject to estimated availability, but please note that availability of the Product and the Service cannot be guaranteed. We reserve the right to impose quantity limits on any order, to reject all or part of an order, and to discontinue offering certain of the Product or the Service. We further reserve the right to offer and accept orders for the Product and the Service within certain geographic locations and/or according to certain other criteria as we may determine from time to time in our sole discretion.
Product Orders. Your order constitutes an offer to purchase a Product, and all orders are subject to Equinox Media’s acceptance. Except to the extent prohibited by applicable law, Equinox Media may accept, decline, or place limits on your order for any reason. You do, however, acknowledge that by clicking on the “Place Order” or other similar button, you enter into an obligation to pay for the Product. You authorize Equinox Media to charge all sums for the Product orders that you make and any membership to the Service you select as described in these Terms or published by Equinox Media, including all applicable taxes, to the payment method specified in your account. Your order is complete when Equinox Media informs you that your order has been confirmed. If Equinox Media rejects your offer, Equinox Media will, as your sole and exclusive remedy and Equinox Media’s sole and exclusive liability, refund the amount you paid as described in Section 4.8. Equinox Media will send you an email to the address provided by you once your order has been confirmed. Please note that use of the Bike requires certain additional accessories (including compatible cycling shoes) that are not included with the Bike and must be purchased separately, as well as a membership to the Service as further described in Section 4.11 below. If you have any questions, comments, or concerns regarding Equinox Media’s order acceptance policy, or if you believe that your order was rejected in error, please contact Equinox Media at email@example.com.
From time to time, Equinox Media may in its sole discretion determine to offer the Bike or any other Product (the “Pre-Sale Product”) through a pre-sale or deposit process (a “Pre-Sale”). By completing the Pre-Sale, you are confirming that you wish to reserve your chance to purchase the Pre-Sale Product upon its release in your geographic area and availability. The Pre-Sale requires you to create your Account and submit your email address and other identifying information through the applicable Site for the Pre-Sale (the “Pre-Sale Site”) and pay a fully refundable reservation fee in the amount specified on the Pre-Sale Site (“Reservation Fee”), which will be applied towards the cost of the Pre-Sale Product at the time of your final purchase. We reserve the right to limit Pre-Sales to only one (1) Pre-Sale Product per person or household. Your participation in a Pre-Sale will be subject to the other terms and conditions provided on the Pre-Sale Site at the time of your payment of your Reservation Fee.
After completing the Pre-Sale, you will be placed on a waiting list. Registering through the Pre-Sale Site and paying the Reservation Fee does not imply any obligation for you to purchase the Pre-Sale Product and it does not guarantee that you will be able to do so. We have the right to establish your order of priority on the waiting list in our sole discretion. We have the right to reject Pre-Sale reservations to avoid the risk of over-committing or for any other reason at our discretion. Should your Pre-Sale reservation be rejected or we decide to cancel your reservation, we will notify you and will refund your Reservation Fee within 30 days. Once the Pre-Sale Product is available for your purchase, we will send a notification to the email address you provided through the Pre-Sale Site (a “Purchase Notice”). The Purchase Notice will include information about how you can complete your final purchase of the Pre-Sale Product (“Final Purchase”). Please note that both the Pre-Sale and the Final Purchase of your Pre-Sale Product will be governed by these Terms.
If you decide not to purchase the Pre-Sale Product, you may request a full refund of your Reservation Fee at any time before completing your Final Purchase of your the Pre-Sale Product by emailing us at firstname.lastname@example.org with your order number, and member of our Member Experience team will help to process your refund to your original payment method specified in your account. If you do not complete your Final Purchase within thirty (30) days of receipt of the Purchase Notice (unless a different period is expressly provided on the Pre-Sale Site, in which case such period shall apply), we will have the right to fully refund your Reservation Fee to your original payment account and notify you of such refund in accordance with Section 3.2. In such event, you will lose your reserved place on the waiting list and we will not be able to guarantee you that you will be able to purchase the Pre-Sale Product at that time or in the future. You acknowledge and agree that we will have no liability or further obligation to you in the event of any refund of your Reservation Fee to the fullest extent permitted by applicable law.
Equinox Media may, in its sole discretion, provide you with free access to the Service upon your payment of the Reservation Fee. Unless otherwise specified by Equinox Media or your access is revoked in our sole and absolute discretion, such free access will continue until such time as: (i) you either complete your final purchase of the Pre-Sale Product, in which case your free access to the Service will continue until your activation of the Pre-Sale Product in accordance with Section 4.11(b), and your paid Service Membership will begin at such time; or (ii) the earlier of your requesting a full refund of your Reservation Fee or your failure to complete the Final Purchase within thirty (30) days from your receipt of the Purchase Notice, in which case your free access to the Service will automatically cease without any further notice or other obligation to you.
Title, Risk of Loss. Title to the Product will pass to you when the Product is delivered to our third-party carrier for delivery to you, after which all risk of loss or damage to any Product will be yours.
Shipping and Handling. You agree to pay any shipping and handling charges shown at the time you make a purchase. Equinox Media reserves the right to increase, decrease, add or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you before you make your purchase. Generally, shipping is handled by a third-party courier. When you purchase a Product from our Sites, any shipping times shown are estimates only. Actual delivery dates may vary. While Equinox Media will attempt in good faith to deliver the Product in accordance with your order or any other schedule Equinox Media may provide to you when placing the order, Equinox Media will not be responsible or liable for any delays or failure in such delivery. In the case of inclement weather or other events beyond our control that interfere with our ability to deliver the Product, we will attempt to deliver the Product as soon as reasonably possible after such event. Equinox Media expressly reserves the right to effect delivery of the Product ordered in any number of separate shipments, and the modes of transport and carriers will be decided at Equinox Media’s discretion. During any period of shortage, Equinox Media may allocate its supply of the Product in any manner Equinox Media deems appropriate. Your order will be delivered to the delivery address you specify when placing your order. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. If that is the case, we will attempt to notify you after we accept your order and refund you the purchase price paid. Orders cannot be delivered to PO Box or similar addresses. Equinox Media will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond Equinox Media’s reasonable control. In such cases, Equinox Media will have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time. You agree that you will not obtain, or direct shipment of, a Product for export.
Delivery and Inspection. The Product will be delivered to you at the shipping address you provide by our third-party courier. If you have ordered the Bike, our third-party courier will contact you following your order of the Product to arrange for a delivery time. You will be responsible for ensuring that all requirements for delivery to your residence, including without limitation verifying adequate clearance for delivery of the Product and obtaining any necessary certificate(s) of insurance as required by your residence, have been met prior to the date of delivery. You are also responsible for ensuring that you are present at the time of delivery for the Bike. Any individual at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. Our third-party courier will assemble the Bike with its tablet but is not otherwise responsible for assembly of any other Product or providing training on proper use of the Bike. You should carefully review the applicable user manual or other written instructions upon delivery of, and prior to any use of, any Product to ensure proper use. You are responsible for inspecting each Product for any damage or other issues upon delivery, and you should carefully examine all deliveries of the Product upon delivery. You should notify Equinox Media of any alleged error, shortage, defect or non-conformity of the Product within five (5) days after receipt by emailing us at email@example.com. Your failure to examine and report will, to the maximum extent permitted by applicable law, constitute a waiver of any claim against Equinox Media arising under these Terms or by law with respect to any such error, shortage, defect, or non-conformity reasonably discoverable by examination. You agree to make any and all claims for damage or loss in transit directly against the carrier.
Bike Returns. If you are not satisfied with the Bike, you can request a return and refund within thirty (30) days after your delivery date if you are a first-time Bike purchaser. Bike returns are not available for more than one Bike purchased per household. Because of the size and weight of the Bike, we do not offer a refund for any shipping or delivery charges that you may have paid to receive your Bike. If your Bike is returned in damaged condition, with missing parts, or otherwise has signs of abuse, we reserve the right to refuse a refund or to charge additional restocking fees, at our sole discretion. To initiate a return, please contact us at firstname.lastname@example.org. After we receive your returned Bike and have determined that the Bike is in satisfactory condition, we will issue you a refund for the price you paid for the Bike (less any applicable shipping and handling charges and the applicable return shipping fee). Equinox Media does not take title to any returned Bike until such Bike arrives back at our or our third-party designee’s fulfillment center, as applicable.
Other Product Returns. If you are not satisfied with any Product (excluding the Bike), you can request a return and refund or exchange within thirty (30) days after your delivery date. The following Products may not be returned or exchanged if they have been worn or used or were purchased at a sale price: (i) shoes, (ii) clothing, (iii) water bottles, (iv) in-ear headphones, or (v) heart rate or other wearable fitness monitors. All other returns must be made within thirty (30) days of purchase and must be shipped with the original packaging. Equinox Media is not responsible for packages lost in transit without proof of tracking. Refunds for purchases will be credited back to the original payment method only. To initiate a return, please contact us at email@example.com. After we receive your returned Product, we will issue you a refund for the price you paid for the Product. Equinox Media does not take title to any returned Product until such Product arrives back at our or our third-party designee’s fulfillment center, as applicable.
Repairs, Refunds and Credits. If you are dissatisfied with the Product or the Service and you are not otherwise entitled to the rights described in Sections 4.8(a)-(b) above, you may contact us at firstname.lastname@example.org within thirty (30) days of the date you received the Product or access to the Service. Depending on the circumstances, we may, in our sole discretion, replace or repair any Product at our expense, provide you a full or partial refund of the purchase price for the Product or the Service, or provide you with membership experience credits of promotional value that will be automatically applied to your next eligible purchase of a Product or the Service, as applicable (“Credits”), and are subject to any terms and conditions described with respect to such Credits. Notwithstanding the foregoing, Credits for certain types of Product or Service purchases may require additional action on your part (e.g., application of a coupon code) in order to be applied to future purchases, which will be communicated to you at the time of issuance. Credits are promotional in nature, are not transferable, and are not redeemable for cash or other property. Credits only remain available if you maintain a valid Account. That means that if you cancel your Account, any outstanding Credits associated with your cancelled Account will immediately expire. You may only redeem Credits after they are applied to your Account. If for some reason you believe there is a discrepancy regarding your Credit balance, please contact us at email@example.com. All decisions regarding your Credit balance will be determined in our sole discretion and are final. We may require the return or photographic documentation of any Product that you are dissatisfied with before we provide you with a refund, repair, replacement or Credit, as applicable, at our election.
Export Control. You acknowledge that the Offering may be subject to export control laws and other laws and regulations of the United States and other countries, and that if Equinox Media ships the Product to you, the Product may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any part of the Offering outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not at any time export, re-export, or transfer directly or indirectly any part of the Offering to: (a) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the U.S. government; (b) a person or entity barred by the U.S. Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (c) any destination for an end use that is prohibited by applicable law. You will defend, indemnify, and hold Equinox Media harmless against all claims, damages, or liability resulting from breach of the foregoing.
Product and Service Information; Changes. While we have taken reasonable steps to depict the Product and the Service as accurately as possible through the photographs and other images, descriptions and information featured on our Sites, the detailing (such as color, pattern and texture, etc.) you see on-screen will depend on your monitor and, as such, may not exactly reflect the actual detailing of a Product or the Service when you receive or access it. We also sell Products that have been manufactured by third-party sellers, and our Sites contain Product information provided to us by these third-party sellers. Despite our efforts to be accurate, the Product or the Service you receive in your order may vary from the Product or the Service displayed on the Sites due to a number of factors, including, without limitation, system capabilities and constraints of your computer or electronic device, manufacturing processes or supply issues, and the availability and variability of the Product. We do not guarantee the accuracy of the photographs, images, descriptions and information featured on our Sites. In the event of an error on our Sites or in the description of the Product or the Service, in an order confirmation, in processing or delivering an order or otherwise, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel your order and issue you a partial or complete refund or Credit. Your sole and exclusive remedy and Equinox Media’s sole and exclusive liability, will be to receive a refund for the amount you paid as described in Section 4.8. The Sites may contain information about Products that are not available in every location. A reference to a Product on the Sites does not imply or guarantee that it is or will be available in your location or at the time of order. In addition, Equinox Media expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Product or the Service.
Service Membership Auto-Renewal.
Service Membership. All memberships to the Service, either purchased in connection with your purchase of the Product or as a stand-alone purchase (a “Service Membership”), will continue and automatically renew until cancelled and your then-current Membership Period (as defined below) expires in accordance with these Terms. BY PURCHASING A SERVICE MEMBERSHIP, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR SERVICE MEMBERSHIP HAS RECURRING PAYMENT FEATURES AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING PAYMENT OBLIGATIONS (THE “MEMBERSHIP FEE”) PRIOR TO CANCELLATION OF YOUR SERVICE MEMBERSHIP BY YOU OR BY EQUINOX MEDIA AND THE EXPIRATION OF YOUR THEN-CURRENT MEMBERSHIP PERIOD. All Service Memberships automatically renew for the duration of the membership period that you selected (“Membership Period”) until they are cancelled in accordance with these Terms.
Recurring Billing. Billing occurs on the date when you activate your Service Membership in accordance with this Section 4.11(b) and automatically recurs thereafter on a monthly basis (each, a “Membership Billing Date”) during the term of the Service Membership. If you purchase the Service Membership as required in connection with your purchase of the Bike or another Product, your Service Membership will be automatically activated, and your first Membership Billing Date will occur, at the time that you receive and activate the Service on the Bike or such other Product. If you purchase the Service Membership as a stand-alone purchase, your Service Membership will be automatically activated, and your first Membership Billing Date will occur, at the time of your purchase of the Service Membership. YOU AGREE THAT EQUINOX MEDIA (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON EACH MEMBERSHIP BILLING DATE FOR THE MONTHLY COST OF YOUR SERVICE MEMBERSHIP (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SERVICE MEMBERSHIP CONTINUES. We will bill your Membership Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information) in accordance with Section 4.12 below.
Cancellation. You must cancel your Service Membership before your then-current Membership Period expires in order to avoid being charged the Membership Fee(s) for the next recurring Membership Period. If you cancel your Service Membership, your Service Membership will automatically end at the expiration of your current Membership Period. All Membership Fees are fully earned upon payment and are not subject to refund or any pro rata Credit or other offset upon cancellation. You may cancel the Service Membership online at any time by emailing us at: firstname.lastname@example.org and following the instructions in the response. When your Service Membership is cancelled, you will lose access to any feature of the Service that requires a membership, including but not limited to access to the Service on the Bike. In the event you cancel your Service Membership, please note that we may still send you promotional communications about Equinox Media or the Offering, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
Authorization; Delinquent Accounts. By providing a credit card or other payment method that Equinox Media accepts, you represent and warrant that you are authorized to use the designated payment method and that you authorize Equinox Media (or our third-party payment processor) to charge all sums for the orders that you make for any Product and/or the Service as described in these Terms or published by Equinox Media, including all applicable shipping and handling costs and taxes, to the payment method you provide and thereafter specified in your Account. If you pay any fees with a credit card, Equinox Media may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. You authorize us to charge any credit card or payment method associated with your Account in case your primary payment method is declined or no longer available to us for payment of any Membership Fee. Equinox Media may cancel any Product order or suspend or terminate access to the Service, including fee-based portions of the Service, for any Account for which any amount is due but unpaid. In addition to the amount due for the Product or the Service, a delinquent Account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. You must resolve any payment method problems and unpaid fees and charges before we proceed with your order or reinstate access to the Service. If you want to change or update your payment method information, you can do so at any time by logging into your Account. If a payment is not successfully settled and you do not edit your payment method information, you remain responsible for any uncollected amounts and, with respect to your Service Membership, authorize us to continue billing the payment method, as it may be updated. You acknowledge that the amount billed may vary due to promotional offers, preferences you select, changes you make to your Service Membership, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
No Resale. You are not permitted to resell, sublicense or otherwise use the Product or the Service for commercial purposes. Any such attempts will be immediately null and void.
Promotional Offers. Equinox Media, at its sole discretion, may make promotional offers with different features and/or different pricing, including without limitation offering free trials of the Service for specified periods of time without payment. These promotional offers, unless made to you, will not apply to your offer or these Terms. If we offer you a promotional offer, the specific terms of your promotion will be provided in the marketing materials describing the particular promotion or at registration. Promotions involving free trials are limited to one (1) per household. If your promotional offer provides for a free trial without requiring a paid Service Membership, your free access to the Service will automatically cease without any further notice or other obligation to you upon expiration of the applicable free trial period. IF YOUR PROMOTIONAL OFFER PROVIDES FOR A FREE TRIAL IN CONNECTION WITH A PAID SERVICE MEMBERSHIP, YOUR MEMBERSHIP BILLING DATE WILL OCCUR UPON EXPIRATION OF THE APPLICABLE FREE TRIAL PERIOD AND WE (OR OUR THIRD-PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SERVICE MEMBERSHIP IN ACCORDANCE WITH SECTION 4.11 FOR AS LONG AS YOUR SERVICE MEMBERSHIP CONTINUES, UNLESS YOU CANCEL YOUR SERVICE MEMBERSHIP PRIOR TO THE END OF YOUR FREE TRIAL TO THE EXTENT PERMITTED UNDER THE TERMS OF THE MEMBERSHIP PERIOD APPLICABLE TO YOUR SERVICE MEMBERSHIP. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.11(c) ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SERVICE MEMBERSHIP HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
Limited License. Subject to your complete and ongoing compliance with these Terms, Equinox Media grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) download, install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service on such mobile device that you own or control and on the tablet connected to the Product that you own or control.
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not:
reproduce, distribute, publicly display, or publicly perform the Service (or any component of the Service), including for any commercial purpose or for the benefit of any third party or in any matter not permitted by these Terms or permitted expressly in writing by us;
use, display, mirror or frame the Service or any individual component of the Service, Equinox Media’s name, any Equinox Media trademark, logo or other proprietary information (including the Variis brand name), or the layout and design of any page or form contained on a page, without our prior express written consent;
modify, alter, replicate, store, distribute or create derivatives from the Service (or any component of the Service, including any content in the Service), except as expressly permitted in writing by us;
use SoulCycle class content on any third-party equipment;
access, use or exploit the Service (or any component of the Service) in order to build or develop a competitive or similar product or service; or
avoid, remove, bypass, deactivate, impair, interfere with or otherwise circumvent any feature or technological measure of the Service, including any security or access control mechanism desired to protect the Service.
Ownership; Proprietary Rights.
Offering and Materials. As between you and Equinox Media, the Service and the Sites and all content displayed or made available on or through, or otherwise included in, the Offering, is owned and operated by Equinox Media. The videos, sound recordings, musical compositions, visual, audiovisual and audio content, visual interfaces, graphics, design, compilation, interactive features, works of authorship, information, data, computer code (including source code or object code), products, software, services, content, and all other elements of the Offering, including any computer code installed on the Offering (collectively, “Materials”) provided by Equinox Media are protected by intellectual property and other laws. All Materials included in the Offering, including the selection, coordination, arrangement and enhancement of Materials and the design, layout and “look and feel” of the Service and the Sites, constitute valuable intellectual property of Equinox Media or its third party licensors. The Service is licensed, not sold, to you, and your limited rights to access and use the Service are conditioned upon your compliance with these Terms. No act of downloading or copying from, or otherwise using, the Service, even with Equinox Media’s permission, will transfer any title, interest or right in or to the Service to you. Transfer of title to any Product does not include any Materials included or embedded in the Product, which Materials are made available to you under a license from Equinox Media as specified herein. Except as expressly authorized by Equinox Media in these Terms, you may not copy, redistribute, reproduce, record, transfer, perform or display to the public, broadcast, make available to the public or otherwise make use of the Materials. Equinox Media and its licensors expressly reserve all rights to the Materials not granted expressly in these Terms, and Equinox Media may revoke your license to use any part of the Offering at any time.
Feedback. Separate and apart from User Content, you can submit input, ideas, modifications, improvements, suggestions or other feedback regarding the operation, usefulness, functionality, design or performance of, or otherwise relating to, the Offering (“Feedback”). Feedback is nonconfidential and shall become the sole property of Equinox Media. Equinox Media shall own, and you hereby assign to Equinox Media, exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Third Party Terms
Third Party Software. The Offering may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Offering is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses. The Offering may include code and components licensed under an open source license, as further described at [URL] or such other location specified by Equinox Media.
User Content Generally. Certain features of the Offering may permit users to upload content to the Offering, including messages, reviews, photos, video, images, data, information, text, works of authorship and other types of materials (“User Content”) and to publish User Content on the Offering. If you decide to upload and publish your User Content through the Offering, you understand that this User Content may be viewable by others in accordance with the privacy settings you establish. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Offering.
Limited License Grant to Equinox Media. By providing User Content to or via the Offering or through our pages, you grant Equinox Media a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to use, host, store, transfer, transmit, publicly display and perform, publish, reproduce, modify, adapt, make derivative works from (including, without limitation, translations), and distribute your User Content, in whole or in part, and your name, likeness, voice and persona in any manner and in any media formats and through any media channels now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without acknowledgment or compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.
User Content Representations and Warranties. Equinox Media disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Offering. By uploading, posting or otherwise providing User Content via the Offering, you affirm, represent, and warrant that:
your User Content is nonconfidential;
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Equinox Media and users of the Offering to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Equinox Media, the Offering and these Terms;
your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (iii) contain any personally identifiable information, including contact information, for you or any other person; (iv) contain, distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of the Service or the Sites, in whole or in part, or any systems or equipment of Equinox Media or any other end user; or (v) cause Equinox Media to violate any law or regulation;
your User Content is accurate, complete and in compliance with these Terms and all applicable laws, rules and regulations and is not misleading or harmful in any manner;
your User Content (i) could not be deemed by a reasonable person to be objectionable, profane, indecent, obscene, pornographic, sexually explicit, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, and (ii) does not contain or depict, and you may not use, any symbols, words or slurs that are widely considered offensive to individuals of a certain race, gender, ethnicity, religion, sexual orientation or socioeconomic group;
your User Content does not contain, depict or promote any unreasonably dangerous or reckless behavior or activity, including without limitation violence, abuse, cruelty to animals, use of illegal drugs, excessive or inappropriate use of alcohol or legal drugs or any conduct that constitutes a criminal offense or gives rise to civil liability; and
your User Content does not may not contain, depict or promote, any advertising or commercial activity, including without limitation by offering products or services, conducting sweepstakes or contests, or otherwise sharing or transmitting unsolicited advertising, spam or junk or bulk messages.
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. Equinox Media may, however, in its sole discretion and at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable, suspend or terminate your Account or access to the Offering, and/or take such further steps as may be available to Equinox Media including reporting you to appropriate law enforcement or governmental officials or seeking other legal or equitable remedies. You understand that when using the Service and the Sites you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Equinox Media with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content and/or suspend or terminate the applicable Account or access to the Service or the Sites, which we reserve the right to do at any time and without notice. For clarity, Equinox Media does not permit copyright-infringing activities on the Offering.
Digital Millennium Copyright Act
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). Equinox Media reserves the right, but not the obligation, to terminate your license to use, or otherwise disable your Account and access to the Offering, in whole or in part, if we determine, in our sole and absolute discretion, that you are involved in infringing activity, including uploading, posting or sharing User Content that is infringing, regardless of whether you are a first-time or repeat infringer, and regardless of whether the material or activity is ultimately determined to be infringing. The foregoing processes does not limit our ability to pursue any other remedies we may have to address any suspected infringement or violation of these Terms. If you have an intellectual property rights-related complaint about material posted on the Service or the Sites, you may contact our Designated Agent at the following address:
Equinox Media LLC
ATTN: Legal Department (Copyright Notification)
513 West 54th Street, New York, NY 10019
Any notice alleging that materials hosted by or distributed through the Offering infringe intellectual property rights must include the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Offering;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Offering of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
Please see 17 U.S.C. § 512(c)(3) for a complete list of the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
Beta Terms. Equinox Media may from time to time offer a beta, pilot or other early access program (each, a “Beta Program”) under which Equinox Media will conduct research or testing on various new products, features, options, initiatives, or services that we are considering developing or adding or incorporating into the Offering (the “Beta Features”). Under the Beta Program, we may from time to time and in our sole discretion grant certain customers access to various Beta Features that are not visible or available to our broader customer population or the general public. As described in this Section 10, these terms (these “Beta Terms”) are incorporated into and supplement the Terms in governing the Beta Program. These Beta Terms are in addition to our Terms and any other agreement you may have with us in respect of the Offering or otherwise, but only to the extent necessary to govern your participation in the Beta Program. In the event any term or provision of these Beta Terms is expressly inconsistent with any term or provision of our Terms, such term or provision of these Beta Terms will govern. Sometimes additional terms, conditions, or Product requirements may apply to a specific Beta Feature. In such event, we will make such additional terms, conditions or requirements available to you with the applicable Beta Feature. Any such additional terms, conditions or requirements will become part of these Beta Terms and your agreement with us if you use the applicable Beta Feature. In addition, we reserve the right to change or modify these Beta Terms at any time and in our sole discretion. If we make changes to these Beta Terms, we will provide notice of such changes in accordance with Section 12. By continuing to access or participate in the Beta Program, or order, receive or use any part of the Offering made available through the Beta Program or any Beta Feature, you confirm your acceptance of the revised Beta Terms and all of the terms incorporated herein by reference. If you do not agree to the revised Beta Terms, you may not access or participate in the Beta Program.
Eligibility. Participation in the Beta Program is by invitation only. You may also be required to meet certain participation requirements, such as the location of your residence or club membership. If you did not receive an invitation to join the Beta Program, you may not access or participate in the Beta Program. You must also have an active Service Membership in good standing to participate in the Beta Program. If you or a member of your immediate family are employed by a business known or suspected to be a competitor of Equinox Media, or otherwise determined to be a competitor by us in our sole discretion, you are not eligible to access or participate in the Beta Program.
Using the Beta Program; Opt-out Choices. Your participation in the Beta Program is optional, so you may decline the invitation and continue to access or use the Offering as you normally would. If you elect to participate in the Beta Program, you can always opt-out of the Beta Program at any time by contacting us at email@example.com. Please note, however, that if any part of the Offering has not been made available to you, either in your geographic region or otherwise, you will not be able to continue to access or use such part of the Offering without participating in the Beta Program. In some instances, we may remove you from the Beta Program if you no longer meet our Beta Program requirements. For example, if your residence changes to a location that is not covered by the Beta Program we will need to remove you from the Beta Program. If at any time you opt-out of the Beta Program or are removed from the Beta Program by us, we cannot guarantee that you will be able to rejoin the Beta Program at a later time. If as part of the Beta Program you are invited to, and elect to download and use, any Beta Program mobile application, you agree to immediately delete the mobile application from your device if you subsequently opt-out of the Beta Program. If you elect to participate in the Beta Program, the Offering displayed to you may be tailored, depending on the Beta Feature we may make visible or available to you (if any). It is important to know that your participation in the Beta Program does not guarantee that you will be selected to access or use any Beta Feature. While we strive to make the Beta Program a great experience for all participants, we need you to know that the Beta Features may not operate at the level you have come to expect from us through your use of the Offering. This means that the Beta Features may not operate as intended and may be substantially modified at any time, with or without notice to you.
Feedback; Confidentiality. To help us improve our Beta Features, we may ask you to provide Feedback regarding certain Beta Features, or you may have opportunities to submit Feedback, such as questions, comments, suggestions, reviews, ideas, or other information, regarding the Beta Program. We value your Feedback, so we hope you will take the time to provide it to us. All Feedback will be governed by Section 6.2 of the Terms. Since you may have access to Beta Features that are not visible or available to other customers or the general public, you agree to keep any and all information you learn by participating in the Beta Program, including any Feedback, strictly confidential, and to not disclose any information regarding the Beta Program or any Beta Feature to any third party without our prior written consent.
Prohibited Conduct. You acknowledge and agree that any Beta Features made visible or available to you are solely for your own personal use and that the Beta Program and Beta Features are deemed Materials under these Terms and are subject to the terms and conditions thereof.
Changes to Service Membership Auto-Renewal. YOUR USE OF CERTAIN BETA FEATURES MAY RESULT IN CHANGES TO YOUR SERVICE MEMBERSHIP AND THE PRICES APPLICABLE THERETO. If your Service Membership changes, the applicable monthly subscription price may also change. If we change the prices or other charges associated with our various subscription plans, we will provide you with notice of such changes in accordance with Section 3.2.
Continuous Subscriptions. BY USING ANY BETA FEATURE THAT RESULTS IN CHANGES TO YOUR SERVICE MEMBERSHIP, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) EQUINOX MEDIA (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY BASIS FOR YOUR SERVICE MEMBERSHIP, IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES, FOR AS LONG AS YOUR SERVICE MEMBERSHIP CONTINUES, (B) THE AMOUNT YOU ARE CHARGED MAY VARY DEPENDING ON THE BETA FEATURES YOU USE OR THE CHOICES YOU MAKE, AND (C) YOUR SERVICE MEMBERSHIP IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE OFFERING, THE BETA PROGRAM OR APPLICABLE BETA FEATURES IN ACCORDANCE WITH THESE BETA TERMS AND SECTION 4.11.
Cancellation Policy. AS DESCRIBED IN SECTION 4.11, YOU MAY CANCEL YOUR SERVICE MEMBERSHIP AT ANY TIME BY EMAILING US AT HELLO@VARIIS.COM AND FOLLOWING THE INSTRUCTIONS IN THE RESPONSE. IF YOU CANCEL YOUR SERVICE MEMBERSHIP PRIOR TO THE EXPIRATION OF YOUR THEN-CURRENT MEMBERSHIP PERIOD, YOU WILL CONTINUE TO HAVE ACCESS TO THE SERVICE AND BE CHARGED THE MEMBERSHIP FEE UNTIL THE EXPIRATION OF YOUR THEN-CURRENT MEMBERSHIP PERIOD NOTWITHSTANDING YOUR CANCELLATION OF YOUR SERVICE MEMBERSHIP.
Modifications. We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Beta Program or any Beta Feature (in whole or in part) at any time. We may not provide notice when we modify a Beta Feature so please check these Beta Terms periodically.
Termination. Notwithstanding anything contained in these Beta Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or participate in the Beta Program or access or use the Beta Features, at any time and for any or no reason. You acknowledge and agree that we will have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us to the fullest extent permitted by applicable law. Termination of the Beta Program or your participation in it will not, by itself, terminate your right to access or use the Offering. Notwithstanding the foregoing, if any part of the Offering has not been made available to you, either in your geographic region or otherwise, in which case you will not be able to continue to access or use such part of the Offering without participating in the Beta Program.
Prohibited Conduct. YOU AGREE THAT YOU WILL NOT VIOLATE ANY LAW, CONTRACT, INTELLECTUAL PROPERTY OR OTHER THIRD PARTY RIGHT OR COMMIT A TORT, AND THAT YOU ARE SOLELY RESPONSIBLE FOR YOUR CONDUCT, WHILE ACCESSING OR USING THE OFFERING. BY USING THE OFFERING YOU AGREE THAT YOU WILL ABIDE BY THESE TERMS AND AGREE NOT TO:
use the Offering for any illegal purpose or in violation of any local, state, national, or international law;
harass, threaten, demean, embarrass, or otherwise harm any other user of the Offering;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
avoid, remove, bypass, circumvent, deactivate, impair or otherwise interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Offering;
download or install any third-party software and/or application on the Service or any Product (excluding assistive technologies that are necessary for your own use of the Offering, such as screen-readers) that is not expressly permitted by us in writing;
interfere with, or attempt to interfere with, the operation of the Service or any user’s access to or enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any system, network, equipment, or server connected to or used to provide the Service, including by overloading, flooding, spamming or mail-bombing the Service;
access, tamper with or use non-public areas of the Offering, Equinox Media’s computer systems or networks or the technical delivery systems of Equinox Media’s providers, or attempt to probe, scan or test the vulnerability of any Equinox Media system or network or breach any security or authentication measures;
attempt to access, scrape or search the Offering or download content from the same, 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 Equinox Media or other generally available third-party web browsers;
use any meta tags or other hidden text or metadata utilizing an Equinox Media trademark, logo, URL or product name (including the Variis brand name) without our prior express written consent;
copy, use, disclose or distribute any information or data obtained from the Offering, whether directly or through third parties (such as search engines or third-party websites), without our prior express written consent;
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Account without permission, or falsifying your age or date of birth;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials;
provide your password or Account credentials to any other person or use any other person’s username and password;
use the Service if you are prohibited from doing so under applicable law; or
attempt to do any of the acts described in this Section 11 or assist, encourage or permit any person in engaging in any of the acts described in this Section 11.
We reserve the right to monitor access to or use of the Offering for the purpose of operating the Offering, to ensure compliance with these Terms, to comply with applicable law or other legal requirements and to maintain the integrity and reputation of the Offering and Equinox Media’s systems and networks. We reserve the right, but are not obligated, to remove or disable access to all or any part of the Offering, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of your conduct to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Offering. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Modification of these Terms. We reserve the right to update, change or otherwise modify these Terms on a going-forward basis at any time and in our sole discretion upon 7 days’ notice to you. If we update these Terms, we will provide notice of such updates, such as by sending an email notification to the email address listed in your Account, providing notice through the Sites and/or the Service or updating the “Last Updated” date at the beginning of these Terms. Updates will be effective on the date specified in the notice. We may, in our sole discretion, require that you accept any modified Terms (e.g., by clicking “I Accept” or other similar button) in order to continue using the Service. It is important that you review the Terms whenever we update them before you use the Offering. By continuing to access or use the Offering after we have posted updated Terms, you are agreeing to accept and be bound by the updated Terms and all of the terms incorporated therein by reference. If you do not agree to the updated Terms, then, except as otherwise provided in Section 17.8 (“Modifications to this Arbitration Provision”), you may not use the Offering anymore.
Term, Termination and Modification of the Service
Term. These Terms are effective beginning when you (a) accept the Terms, (b) visit, access or use the Sites or any mobile applications provided by or on behalf of Equinox Media that link to these Terms, (c) register for an Account, or (d) download, install, access, or otherwise use the Offering, in each such case whichever occurs first, and ending when terminated as described in Section 13.2.
Termination. If you violate any provision of these Terms, your authorization to access the Services and the Sites, and these Terms automatically terminate. In addition and notwithstanding anything contained in these Terms, Equinox Media reserves the right, at its sole discretion, to suspend, terminate or delete these Terms or your Account on the Service, or suspend or terminate your access to the Services and the Sites, at any time for any reason or no reason, with or without notice. You acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. If Equinox Media deletes your Account, you may not re-register for or use the Offering under any other user name or profile. Equinox Media may block your access to the Offering to prevent re-registration. You may cancel your Account in accordance with Section 4.11.
Effect of Termination. Upon termination of these Terms: (a) your license rights set forth herein will terminate and you must immediately cease all use of the Offering; (b) you will no longer be authorized to access your Account or the Offering; (c) we have the right to immediately delete all data, files, and other information or User Content stored in or for your Account without further notice to you; (d) you must pay Equinox Media any unpaid amount that was due prior to termination; and (e) all payment obligations accrued prior to termination and Sections 5.3, 6, 13.3, 14, 15.2, 16, 17 and 18 will survive.
Modification of the Offering. Equinox Media reserves the right to modify, suspend or discontinue the Offering at any time (including by limiting or discontinuing certain features of the Offering), temporarily or permanently, without notice to you. Except as otherwise set forth in our Refund Policy as described in Section 4.8, Equinox Media will have no liability for any change to the Offering or any suspension or termination of our provision of, or your access to or use of, the Offering.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Offering, and you agree to indemnify, defend and hold harmless Equinox Media and its affiliates, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, parent companies, subsidiaries, agents, representatives, predecessors, successors and assigns (together, the “Equinox Media Entities”) from and against all actual or alleged Equinox Media Entity or third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to: (a) any use or misuse of the Offering by you or any third party who accesses or uses the Offering on your behalf or through your Account; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law, rule or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any User Content you create, post, share or store on or through the Offering or our pages or feeds on third-party social media platforms; (e) any Feedback you provide; or (f) any dispute or issue between you and any third party. You agree to promptly notify Equinox Media of any third-party Claims, cooperate with the Equinox Media Entities in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Equinox Media Entities shall have control of the defense or settlement of any third-party Claims (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Equinox Media.
Warranties and Disclaimers
Limited Warranty for Bike. Please carefully review the limited Bike warranty, available at www.variis.com/warranty, before making a purchase decision. Please be aware that any unauthorized modifications to the Bike, improper or negligent assembly, maintenance, installation, relocation or repair (other than caused by an Equinox Media-authorized service technician), use of the Bike with parts or accessories from third parties or not originally intended for or compatible with the Bike, resale of the Bike or any use contrary to the instructions in the User Manual, in each case, may void the limited Bike warranty or result in loss of access to the Service or loss of some or all functionality of your Bike, as more fully described in the limited Bike warranty.
Disclaimer. THE OFFERING AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE OFFERING ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 15.1. YOU THEREFORE USE THE OFFERING AT YOUR OWN RISK. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 15.1, EQUINOX MEDIA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE OFFERING AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE OFFERING, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTIES THAT THE OFFERING OR ANY PART THEREOF WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. EQUINOX MEDIA DOES NOT WARRANT THAT THE OFFERING OR ANY PORTION OF THE OFFERING, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE OFFERING, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND EQUINOX MEDIA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. WITHOUT LIMITING THE FOREGOING, EQUINOX MEDIA MAKES NO REPRESENTATIONS OR WARRANTIES THAT: (I) THE OFFERING IS OR WILL BE PERMITTED IN YOUR JURISDICTION; (II) CONCERNING ANY CONTENT INCLUDED IN THE USER CONTENT; (III) CONCERNING ANY THIRD PARTY’S USE OF USER CONTENT THAT YOU SUBMIT; (IV) CONCERNING ANY SITES OR RESOURCES OUTSIDE OF THE OFFERING, EVEN IF LINKED TO FROM THE OFFERING, AND INCLUDING THIRD-PARTY SITES OR THIRD-PARTY SERVICES; (V) THAT THE OFFERING WILL MEET YOUR PERSONAL OR PROFESSIONAL NEEDS; OR (VI) THAT EQUINOX MEDIA WILL CONTINUE TO SUPPORT ANY PARTICULAR FEATURE OF THE OFFERING. THIS SECTION 15.2 DOES NOT LIMIT THE TERMS OF ANY PRODUCT WARRANTY MADE TO YOU BY ANY THIRD-PARTY MANUFACTURER OF ANY PRODUCT THAT IS SOLD BY EQUINOX MEDIA TO YOU THROUGH THE SITES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE OFFERING OR EQUINOX MEDIA ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE OFFERING WILL CREATE ANY WARRANTY REGARDING ANY OF THE EQUINOX MEDIA ENTITIES OR THE OFFERING THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE THAT MAY RESULT FROM THE OFFERING OR YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE OFFERING AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY INJURY OR DAMAGE TO YOUR PROPERTY CAUSED BY THE OFFERING, OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION AND SECTION 16 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. EQUINOX MEDIA DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT EQUINOX MEDIA IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW AND YOU MAY HAVE GREATER RIGHTS UNDER SUCH APPLICABLE LAWS.
Release and Limitation of Liability
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE EQUINOX MEDIA ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, DAMAGES FOR BUSINESS INTERRUPTION OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE OFFERING OR ANY MATERIALS OR CONTENT ON THE OFFERING, OR RELATING TO THE ORDER, RECEIPT OR USE OF THE OFFERING, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY EQUINOX MEDIA ENTITY, OR FROM EVENTS BEYOND THE EQUINOX MEDIA ENTITIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO ANY EQUINOX MEDIA ENTITY’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT ANY EQUINOX MEDIA ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, (A) IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE EQUINOX MEDIA ENTITIES (JOINTLY) TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE ORDER, RECEIPT, USE OF OR ANY INABILITY TO USE ANY PORTION OF THE OFFERING (EXCLUDING THE PRODUCT) OR OTHERWISE ARISING UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO EQUINOX MEDIA FOR ACCESS TO AND USE OF THE SERVICE IN THE ONE (1) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; AND (II) $100; AND (B) IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE EQUINOX MEDIA ENTITIES (JOINTLY) TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE ORDER, RECEIPT, USE OF OR ANY INABILITY TO USE ANY PRODUCT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU PAID TO EQUINOX MEDIA FOR THAT PRODUCT.
APPROPRIATE ALLOCATION. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, EXCLUSION OF DAMAGES OR RELEASE IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE EQUINOX MEDIA ENTITIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
RELEASE. You acknowledge that you have agreed to the assumptions of risk and limited warranties described in these Terms. THEREFORE, ON BEHALF OF YOURSELF, YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES AND ANYONE ELSE WHO MIGHT SUE ON YOUR BEHALF, YOU ASSUME THE RISK OF INJURY, PROPERTY DAMAGE OR OTHER HARM FROM YOUR USE OF THE OFFERING AND, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU HEREBY IRREVOCABLY RELEASE, FOREVER DISCHARGE AND AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO HOLD HARMLESS THE EQUINOX MEDIA ENTITES FROM, AND COVENANT NOT TO SUE ANY SUCH EQUINOX MEDIA ENTITIES FOR, ANY INJURY, ILLNESS, DEATH OR PROPERTY DAMAGE, AND ANY OTHER CLAIM, ACTION, DEMANDS, DAMAGE, EXPENSE OR LOSS, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, ANTICIPATED OR UNANTICIPATED, RELATED TO YOUR USE OF THE OFFERING, EVEN IF THE FOREGOING RESULTS, IN WHOLE OR IN PART, FROM THE FAULT OR NEGLIGENCE OF ANY EQUINOX MEDIA ENTITIES. IT IS FURTHER UNDERSTOOD AND AGREED THAT ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY OF THE UNITED STATES ARE HEREBY EXPRESSLY WAIVED. SECTION 1542 READS AS FOLLOWS: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Dispute Resolution and Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EQUINOX MEDIA OR ITS AFFILIATES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Generally. In the interest of resolving disputes between you and Equinox Media in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.4, you and Equinox Media agree that every dispute, claim, suit, action, causes of action, demand or proceedings (collectively, “Disputes”) arising in connection with these Terms (including any Dispute arising from your purchase or use of the Offering) will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate Disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND EQUINOX MEDIA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
No Class Actions. YOU AND EQUINOX MEDIA AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE OFFERING IS PERSONAL TO YOU AND EQUINOX MEDIA AND THAT EACH PARTY 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 ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and Equinox Media agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, unless both you and Equinox Media agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, whether within or outside of arbitration.
Opt-Out. If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Equinox Media LLC, Attention: Legal Department – Arbitration Opt-Out, 513 West 54th Street, New York, NY 10019. In order to be effective, the letter must specify: your full legal name, the email address associated with your Account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Equinox Media receives your Opt-Out Notice, this Section 17 will be void and you are agreeing that any Dispute arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
Arbitrator; Rules of JAMS. You and Equinox Media agree that these Terms affect interstate commerce and that the enforceability of this Section 17 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law. You and Equinox Media further agree that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims or preside over any type of class or representative proceeding. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS, or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. The arbitrator has exclusive authority to resolve any Dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; Process. You and Equinox Media agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. A party who intends to seek arbitration must first send a written notice of the dispute to the other party (“Notice of Arbitration”). Equinox Media’s address for any Notice of Arbitration is: Equinox Media LLC, Attn: General Counsel, 513 West 54th Street, New York, NY 10019. Your Notice of Arbitration must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our Notice of Arbitration to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. The parties will make good faith efforts to resolve the Dispute directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Equinox Media may commence an arbitration proceeding. All arbitration proceedings between the parties will be conducted in accordance with Section 17.5. During the arbitration, the amount of any settlement offer made by you or Equinox Media must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Equinox Media in settlement of the dispute prior to the award, Equinox Media will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 11 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND EQUINOX MEDIA AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR EQUINOX MEDIA WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND EQUINOX MEDIA WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
Fees. Payment of all filing, administration and arbitrator fees will be governed by the rules of JAMS. If you assert a claim against Equinox Media, you will be responsible for paying a $250 consumer filing fee. Equinox Media 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, Equinox Media will reimburse your initial filing fee. If we prevail in arbitration, we will 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.
Modifications to this Arbitration Provision. If Equinox Media makes any future change to this arbitration provision, other than a change to Equinox Media’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Equinox Media’s address for Notice of Arbitration, in which case your Account with Equinox Media will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Severability; Enforceability. If any term, clause or provision of this Section 17 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable. Further, the waivers set forth in Section 17.3 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law. If Equinox Media receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
Governing Law. These Terms, and your access to and use of the Service and the Sites and your order, receipt and use of the Product, shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to conflict of law principles (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. For any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, you and Equinox Media submit to the personal and exclusive jurisdiction of the state courts and federal courts of the State of New York and the United States, respectively, located within the State of New York, County of New York, Borough of Manhattan. We operate the Service from our offices in New York, and we make no representation that Materials included in the Offering are appropriate or available for use in other locations.
Additional Terms. Your use of the Offering is subject to all additional terms, policies, rules, or guidelines applicable to the Offering or certain features of the Offering that we may post on or link to from the Sites or the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
Force Majeure. Equinox Media will not be liable to you for any delay in delivery of the Product or your inability to access the Service, including any delay or lack of access due to an event beyond Equinox Media’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of Equinox Media’s control. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms or any order that is caused by events outside our reasonable control.
Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Offering or to receive further information regarding use of the Offering.
Customer Support. You may request support for the Offering, including any problems with the Product or the Service, by contacting us at firstname.lastname@example.org. We will attempt to respond to all requests within a reasonable time frame, but we cannot assure you that any requests will be responded to within any particular time frame or that we will be able to answer any such requests.
International Use. The Offering is intended for visitors located within the United States. We make no representation that the Offering is appropriate or available for use outside of the United States. Access to the Offering from countries or territories or by individuals where such access is illegal is prohibited.
Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Equinox Media only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) 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 the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.