Please read these Terms carefully because they govern your use of our Site, which includes our online store for Alta fitness equipment, accessories and other products (“Products”) (collectively, with the Site, the “Services”) and the fitness-related content accessible on or via our Site. They contain important information regarding your rights and obligations, as well as conditions, limitations, and exclusions that might apply to you.
ARBITRATION AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16 “DISPUTE RESOLUTION” BELOW OR WHERE PROHIBITED BY APPLICABLE LAW, YOU AGREE TO RESOLVE ANY DISPUTE BETWEEN YOU AND ALTA THROUGH BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
- Agreement to Terms. By using the Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services.
- Changes to Terms or Services.We may update the Terms at any time, in our sole discretion. If we do so, we’ll post the updated Terms on the Site and indicate at the top of this page the date these Terms were last revised. Any changes to the Terms will be in effect as of the “Last Updated Date” referenced on the Site. We will notify you of any material changes either through a pop-up notice, e-mail or through other reasonable communications. Your continued use of the Services after the “Last Updated Date,” constitutes your acceptance of the updated Terms. If you don’t agree to be bound by these or the updated Terms, then, except as otherwise provided in Section 17(f) “Effect of Changes on Arbitration,” do not use or access (or continue to use or access) the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
- Who May Use the Service?
- Eligibility. You may use the Services only if you are (1) the older of (i) 18 years of age or (ii) the legal age to form a binding contract with Alta and (2) are not barred from using the Services under applicable law.
- Registration and Your Information. You’ll have to create an account if you want to use certain features of the Services (“Account”), such as register for certain giveAltas or promotions that we may offer from time to time, post a Product review, or become a member of the Refer-A-Friend Program. You can do this via the Site or through your account with certain third-party social networking services such as Facebook (each, an“SNS Account”).
- Accuracy of Account Information. You must provide us with accurate, complete and up-to-date information for your Account and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a username a name that is otherwise offensive, vulgar or obscene. You may never use another person's Account or registration information for the Site without permission. You should never publish, distribute or post login information for your Account. You must notify us immediately of any change in your eligibility to use the Site, breach of security or unauthorized use of your Account. You’re solely responsible for all activities that occur under your Account, whether or not you know about them or have authorized them.
- Feedback. We welcome feedback, comments and suggestions for improvements to the Services and Products (“Feedback”). You can submit Feedback by emailing us firstname.lastname@example.org. You grant to us a non-exclusive, transferable, worldwide, perpetual, irrevocable, fully-paid, royalty-free license, with the right to sublicense, under any and all intellectual property rights that you own or control, to use, copy, modify, create derivative works based upon, sell, publicly display, distribute, and otherwise exploit the Feedback for any purpose.
- Purchase of Products.You may purchase Products in our online store accessible on the Site. We attempt to provide accurate descriptions of Products. We do not warrant, however, that the descriptions are accurate, complete, reliable, current or error-free. If a Product is not as described, your sole remedy is to return the item, unless otherwise specified in writing by us. You agree that your order is an offer to buy, under these Terms, all Products listed in your order. Alta may choose not to accept orders at our sole discretion, even after we send you a confirmation email with your order number and details of the items you have ordered.
Payments. When you purchase a Product and make a payment via the Site (each such purchase, a“Transaction”), you expressly authorize us (or our third-party payment processor, if applicable) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that (i) you are duly authorized and have the legal right to use all payment method(s) represented by any such Payment Information, (ii) the Payment Information is true, correct and complete, and (iii) you have sufficient funds or credit available upon your initiation of a Transaction to ensure that the purchase price will be collectible by us. When you initiate a Transaction, you authorize us to provide your Payment Information to our third-party payment processor so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this.
By purchasing, accepting or using a gift card (“Gift Card”) to pay for Products or Services, you agree to be bound by the terms and conditions associated with your Gift Card. Please see the Gift Card terms and conditions located at https://www.altafitness.com/pages/gift-card-terms.
- Payments. When you purchase a Product and make a payment via the Site (each such purchase, a“Transaction”), you expressly authorize us (or our third-party payment processor, if applicable) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that (i) you are duly authorized and have the legal right to use all payment method(s) represented by any such Payment Information, (ii) the Payment Information is true, correct and complete, and (iii) you have sufficient funds or credit available upon your initiation of a Transaction to ensure that the purchase price will be collectible by us. When you initiate a Transaction, you authorize us to provide your Payment Information to our third-party payment processor so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). You should be aware that online payment transactions are subject to validation checks by our payment processor and your card issuer and we are not responsible if your card issuer declines to authorize payment for any reason. Please note, it is possible that your card issuer may charge you an online handling fee or processing fee. We are not responsible for this.
- Prices. Prices for the Products may be displayed in US dollars or in local currency, depending on the location from which you access the Site. The price charged for a Product will be the price in effect at the time the order is placed and will be set out in your order confirmation email. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your purchase total and will be itemized in your shopping cart and in your order confirmation email. We strive to display accurate price information; however we may, on occasion, make inadvertent typographical errors, inaccuracies or omissions related to taxes, pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any orders arising from such occurrences. We may also change prices for Products at any time without notice.
- Promotions. We may offer promotions from time to time on the Site that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the terms specific to the promotion will govern.
- Credit. You may receive credit (“Credit”) from Alta, for example, if you return a Product and elect to receive credit rather than a refund or through our Refer a Friend program (but credit cannot be purchased). Credit can be redeemed in-store or applied to an order placed through your Account. Purchase amounts that exceed the value of the Credit will require an additional method of payment to cover the balance of the purchase price. Credit does not expire. You can check your Credit balance by logging into your Account or by contacting email@example.com.
- Shipping. Products purchased via the Site will be shipped to the address you designate as the shipping address during the check-out process. Applicable shipping rates will be displayed during the checkout process and you will pay all displayed shipping and handling charges. Shipping restrictions apply (please visit www.shopaltafit.com/pages/shipping for more information). Title and risk of loss pass to you upon our transfer of the Products to one of our third-party shipping partners for shipment. Shipping and delivery dates are estimates only and cannot be guaranteed. We are not liable for any delays in shipments.
- Returns. You may return Products that you purchase via the Site in accordance with Alta’s return policy available on the Site (please visit www.shopaltafit.com/pages/shipping for more information).
- Third Party Products. From time to time, we may offer for sale on the Site Products manufactured, distributed, created, produced or otherwise provided to Alta by third parties (“Third Party Products”). When you purchase a Third Party Product through the Site, you do so at your own risk. Alta has no control over, and assumes no responsibility or liability for, Third Party Products.
- Third Party Websites. The Site may contain links to third-party websites, services or other resources on the Internet that are not owned or controlled by Alta (“Third Party Websites”). The content of such Third Party Websites is developed and provided by others. You should contact the site administrators for those Third Party Websites if you have any concerns regarding such links or any content located on Third Party Websites. If you decide to access Third Party Websites, you do so at your own risk. Alta has no control over, does not make any representations regarding, and assumes no responsibility for, the content, accuracy, privacy policies, materials, or practices of or opinions expressed in any Third Party Websites. In addition, Alta will not and cannot monitor, verify, censor or edit the content of any Third Party Website. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods or services available on or through any Third Party Websites.
- Warranty. The Products are covered by a limited warranty as described in the Limited Warranty Terms (shopaltafit.com/pages/warranty), which are hereby incorporated by this reference. Third Party Products are not covered by Alta’s limited warranty.
- Goods Not for Resale or Export. You represent and warrant that you are buying Products from the Site and using the Services for your own personal or household use only, and you will not resell, distribute or export such Products for any commercial purposes.
- Offer Codes; Spokespeople; Refer-a-Friend Program.
- Offer Codes. From time to time, Alta may offer promotional or offer codes that are redeemable towards a purchase of Products on the Site (“Offer Codes”). Please review the Offer Codes for eligibility and other terms and conditions, which may include expiration dates, Product exclusions or other restrictions. Only valid Offer Codes provided by Alta will be honored by Alta. Each Offer Code offered by Alta (i) is non-transferable, (ii) is valid for one single purchase on the Site, (iii) cannot be combined with other promotions, discounts or offers, and (iv) cannot be redeemed for cash or any cash equivalent. Offer Codes cannot be used towards purchase of non-Alta branded merchandise, taxes, or shipping charges. Alta is not responsible for any unauthorized use of Offer Codes. The monetary value of the Offer Code will not be refunded or credited back if the Product purchased using the Offer Code is returned. Offer Codes are void if copied, transferred, sold, exchanged or expired, and where prohibited. Offer Codes cannot be used in conjunction with the Alta Refer-A-Friend Program.
- Offer Codes from Spokespeople. From time to time, Alta may engage spokespeople, influencers, bloggers, or other individuals or entities who have been compensated or incentivized to speak on behalf of our brand. If you receive an Offer Code from a third-party source, please note that such individual may have been compensated by Alta for his or her statements.
- Content Ownership, Responsibility and Removal.
- Definitions. For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Site visitors (including Account holders) provide to be made available through the Services, including Product reviews. User Content also includes Content that explicitly refers to Alta, the Products or the Services that you submit or make available through third-party websites or platforms (“SNS User Content”).
- Our Content Ownership. Alta does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Alta and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. The trademarks, service marks, and logos of Alta (the “Alta Trademarks”) used and displayed in connection with the Services are registered and unregistered trademarks or service marks of Alta. Other company, product, and service names located on the Site or otherwise used in connection with the Services may be trademarks or service marks owned by third parties (the “Third Party Trademarks,” and, collectively with the Alta Trademarks, the “Trademarks”). Nothing on the Site, in the Services or in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site or otherwise used in connection with the Services without our prior written consent specific for each such use. The Trademarks may not be used to disparage us or any applicable third party, our or the applicable third party’s products or services, or in any manner (using commercially reasonable judgment) that may damage any goodwill in the Trademarks. Use of any Alta Trademarks as part of a link to or from any website is prohibited without our prior written consent. All goodwill generated from the use of any Alta Trademark shall inure to our benefit. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, copy, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
- Rights in User Content Granted by You. By making any User Content available through the Services you hereby grant to Alta and its successors and assigns a non-exclusive, transferable, worldwide, royalty-free, fully paid up license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content and any name, username, likeness, voice or photograph provided in connection with your User Content in connection with operating the Site or promoting, advertising or marketing of the Services in any form, medium or technology now known or later developed, and including after your termination of your Account or the Services. In addition, you hereby grant to Alta a non-exclusive, perpetual, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your SNS User Content in connection with operating and providing the Services and Content to you and to other Site visitors, whether on the Site or through any other form of media, including, without limitation, Alta’s SNS Accounts, subject to the terms and conditions of the third-party website or platform to which the SNS User Content was submitted. Alta has no obligation to make any User Content available on the Site or its SNS Accounts. For clarity, the foregoing licenses do not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
- Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or that you have all rights that are necessary to grant us the license rights in your User Content under these Terms, including, without limitation, all copyrights and rights of publicity contained therein, and that all User Content provided by you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Alta on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law, regulation, or contractual duty.
- Rights in Content Granted by Alta. Subject to your compliance with these Terms, Alta grants to you a limited, non-exclusive, non-transferable license, with no right to sublicense, to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
- Sponsored Content. From time to time, Alta may make available through the Services Content that is sponsored by third parties.
- General Prohibitions and Alta’s Enforcement Rights.You will not violate any applicable law, contract, intellectual property right or other third-party right or commit a tort, and you are solely responsible for your conduct while using our Services. You will not:
- Post, upload, publish, distribute, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Alta’s name, any Alta trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Alta’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Alta’s computer systems, or the technical delivery systems of Alta’s providers;
- Attempt to probe, scan or test the vulnerability of any Alta system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Alta or any of Alta’s providers or any other third party (including another user) to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Alta or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing an Alta trademark, logo URL or product name without Alta’s express written consent;
- Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content (including without limitation Product reviews), we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, to comply with applicable law or other legal requirements, and to comply with Alta’s standards. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
- DMCA/Copyright Policy.Alta respects copyright law and expects its users to do the same. It is Alta’s policy to terminate in appropriate circumstances Account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see Alta’s Copyright Policy at com/pages/copyright, for further information.
- Termination.We may restrict, suspend, or terminate your access to and use of the Services, at our sole discretion, at any time and for any reason or no reason (including if we believe that you have engaged in any suspected fraudulent or abusive activity, or violated or acted inconsistently with the letter or spirit of these Terms), and with or without notice to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of the Services or your Account, the following sections of these Terms will survive: 8(a) Content Definitions, 8(b) Our Content Ownership, 8(c) Rights in User Content Granted By You, 12 Warranty Disclaimers, 14 Limitation of Liability, 15 Governing Law and Venue Choice, 16 Dispute Resolution, and 17 General Terms.
- Warranty Disclaimers.EXCEPT AS OTHERWISE PROVIDED IN THE LIMITED WARRANTY TERMS, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE. We make no warranty that the Products or Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- Indemnity.To the fullest extent permitted by applicable law, you will indemnify and hold harmless Alta and its officers, directors, members, managers, owners, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use or misuse of the Services or Content, (ii) your User Content or Feedback, including, without limitation, infringement of any intellectual property or privacy right, (iii) your violation of these Terms, or (iv) the use by any other person or entity accessing the Site, using the Services, or providing User Content using your account.
- Limitation of Liability.
- NEITHER ALTA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PRODUCTS, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER (A) BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, (B) ALTA OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE OR (C) THE DAMAGES WERE FORESEEABLE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT WILL ALTA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE PRODUCTS, SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO ALTA FOR THE PURCHASE OF THE PRODUCTS OR USE OF THE SERVICES OR CONTENT, AS APPLICABLE, OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT INCURRED ANY PAYMENT OBLIGATIONS TO ALTA.
- THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ALTA AND YOU.
- Some jurisdictions do not allow exclusion of limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH JURISDICTIONS, THE LIABILITY OF ALTA SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. NOTHING IN THESE TERMS AFFECTS ANY LEGAL RIGHTS AND REMEDIES YOU HAVE UNDER LOCAL LAW.
- Governing Law and Forum Choice.Except as preempted by the FAA, these Terms and any action related thereto will be governed by the laws of the State of Massachusetts, without regard to its conflict of laws provisions. Any dispute between you and Alta that is not subject to arbitration or cannot be heard in small claims court will be resolved in state and federal courts sitting in Boston, Massachusetts.
- Dispute Resolution.
PLEASE READ THIS SECTION 16 CAREFULLY. THESE PROVISIONS REQUIRE YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US, UNLESS YOU OPT OUT OF ARBITRATION BY FOLLOWING THE INSTRUCTIONS SET FORTH BELOW. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT. IN ADDITION, ARBITRATION PRECLUDES YOU FROM SUING IN COURT OR HAVING A JURY TRIAL.
Mandatory Arbitration of Disputes. Except for Excluded Disputes, as defined in Section 16(b), you and we will resolve any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Products, Services or Content (collectively,“Disputes”) exclusively and finally by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Alta waive your and our respective rights to have Disputes resolved in court, and you and Alta waive your and our respective rights to a trial by jury.
Prior to filing an arbitration, each party will notify the other party in writing of any Disputes (other than an Excluded Dispute in which a party is seeking an injunction or other equitable relief for intellectual property infringement) not less than thirty (30) days from the date they arise, so you and we can attempt in good faith to resolve the Dispute informally. Notice to Alta shall be sent by certified mail addressed to email@example.com.
If you and we cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by either of us, then either you or we may, as appropriate and in accordance with the Agreement, commence binding arbitration or, for Excluded Disputes, submit a claim in court.
- Mandatory Arbitration of Disputes. Except for Excluded Disputes, as defined in Section 16(b), you and we will resolve any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Products, Services or Content (collectively,“Disputes”) exclusively and finally by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Alta waive your and our respective rights to have Disputes resolved in court, and you and Alta waive your and our respective rights to a trial by jury.
- Exceptions and Opt-out. As limited exceptions to Section 16(a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) you and we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights (“Excluded Disputes”). In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email athelp@com or by regular mail at 200 Portland Street, Massachusetts, MA 02114 within thirty (30) days following the date you first agree to these Terms.
Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by these Terms. The AAA Rules are available atadr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
- Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. We’ll pay for all filing, administration and arbitrator fees and expenses if your Dispute is for less than $10,000, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we’ll pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
- Class Action Waiver.Disputes arising out of or related to the Terms are personal to you and us. YOU AND ALTA MAY ONLY BRING CLAIMS AGAINST THE OTHER IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ Dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims and may not otherwise preside over any form of a representative or class proceeding.
- Authority of Arbitrator. These Terms affect interstate commerce and the enforceability of this Section 16(f) will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. 1, et seq. (the “FAA”), to the maximum extent permitted by applicable by law. Except as may be limited by the FAA, these Terms and the applicable AAA Rules, the arbitrator will have the exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding the AAA Rules, any decisions concerning arbitrability of a particular Dispute, including but not limited to whether a class arbitration is permitted by the Agreement, shall be resolved by a court having jurisdiction in Boston, Massachusetts (rather than by an arbitrator). Any Dispute concerning the enforceability of this Section 16(f), or any part thereof, shall also be resolved by a court having jurisdiction in Boston, Massachusetts (rather than by an arbitrator).
- Effect of Changes on Arbitration. Notwithstanding the provisions of Section 3 “Changes to Terms or Services” above, if Alta changes any of the terms of this Section 17 “Dispute Resolution” after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Alta’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Alta in accordance with the terms of this Section 17 “Dispute Resolution” as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
- Severability. If an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid, illegal, void or unenforceable, then that part of these Terms will be deemed severed from the Terms and will not affect the validity or enforceability of the remaining Terms. To the extent any claims must proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration
- Confidentiality. The arbitrator, Alta, and you will maintain the confidentiality of any arbitration proceedings, judgments and awards, including, but not limited to, all information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
- General terms
- Entire Agreement. Except as expressly agreed by Alta and you, these Terms, including any terms and conditions incorporated by reference herein, constitute the entire agreement between us with respect to the subject matter herein, and supersedes all prior or contemporaneous agreements, whether oral or written between Alta and you with respect to the subject matter. You may not assign or transfer these Terms, by operation of law or otherwise, without Alta’s prior written consent, which may be granted or withheld in Alta’s sole discretion. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Alta may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
- Notices. Any notices or other communications provided by Alta under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
- Waiver of Rights. Alta’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Alta, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
- Compliance with laws. You are solely responsible for ensuring compliance with the laws of your specific jurisdiction and for abiding by all applicable local, state, provincial, national and international laws and regulations. The United States controls the export of products and information. You expressly agree to comply with such restrictions and not to export or re-export any of the Content to countries or persons prohibited under the export control laws. By downloading the Content, you are expressly agreeing that you are not in a country where such export is prohibited or are a person or entity for which such export is prohibited. You are solely responsible for compliance with the laws of your specific jurisdiction regarding the import, export, or re-export of the Content.
- Release. To the fullest extent permitted by applicable law, you release Alta from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- Force Majeure. Alta will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic or other public health concern, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. SMS/MMS Mobile Message Marketing Program Terms and Conditions
- Contact Information. If you have any questions about these Terms, the Products or the Services, please contact Alta at email@example.com.