Last Updated: May 18, 2021
WELCOME TO TRX!
2. ELIGIBLITY TO USE TRX SERVICES
a. Eligibility. TRX Services availability may be based on geographic, age or other criteria, as we may establish from time to time. And, we may, in our sole discretion, refuse to offer the TRX Services to any person or entity and change the eligibility criteria at any time.
b. Minimum Age. Currently, you must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to register with and use the TRX Services. Minors between the ages of 13 and 18 years old that can safely use the TRX Services may participate in certain aspects of the TRX Services provided that they do so under their parent’s or legal guardian’s supervision and consent and that such parent or legal guardian agrees to be bound by these Terms. If you are a parent or legal guardian of a user under the age of 18 (or the applicable age of legal majority), you agree to be fully responsible for the acts and omissions of such user in connection with the TRX Services.
c. Compliance; Responsibilities. You are solely responsible for your use of TRX Services and any user you permit access to or allow to share in your experience of your use of TRX Services (“Your End User”) as if Your End User is you. You shall comply with these Terms and any and all applicable laws, rules and regulations related to your and Your End User’s use of TRX Services (including but not limited to laws related to recording, intellectual property, privacy and export control). Your right to access and use the TRX Services is revoked where these Terms or use of the TRX Services is prohibited or conflicts with any applicable law, rule or regulation.
3. PERMITTED USE OF TRX SERVICES AND YOUR RESPONSIBILITIES
a. TRX Services. TRX Services are the property of TRX or TRX’s licensors. TRX and its licensors retain ownership of TRX Services and its contents even after installation on your owned and controlled Devices. Subject to your compliance with these Terms and solely for as long as you are permitted by us to access and use the TRX Services, TRX grants you a limited, non-transferable, non-exclusive, revocable license to: (i) download copies of Applications associated with the TRX Services to Devices you own or control for your personal, non-commercial use of the TRX Services and for no other purpose whatsoever, provided you keep intact all copyright and other proprietary notices and (ii) access and otherwise use the TRX Services (including any content available within the TRX Services) through your owned and controlled Devices, for your personal, non-commercial use of the TRX Services and for no other purpose whatsoever. This license is personal to you and may not be assigned or sublicensed to anyone else. You agree not to use TRX Services, or any part thereof, in any manner not expressly permitted by these Terms.
b. Restrictions. Except as expressly permitted in writing by an authorized representative of TRX, you will not use the TRX Services except as expressly authorized under these Terms, and you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the TRX Services, nor will you take any measures to interfere with or damage the TRX Services, nor will you use the TRX Services (or any component thereof) to create any product or technology that competes with the TRX Services (or any component thereof). Unless otherwise specified, copying or modifying any Application or content or using content from TRX Services for any purpose other than for your personal, non-commercial, including use of any such content on any other website or networked computer environment, is strictly prohibited. All rights not expressly granted by TRX in these Terms are reserved.
4. PROFESSIONAL ADVICE AND MEDICAL DISCLAIMERS IN USING TRX PRODUCTS AND TRX SERVICES
a. Professional Advice Disclaimer. TRX OFFERS HEALTH AND FITNESS INFORMATION THAT IS DESIGNED FOR EDUCATIONAL AND ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN, WITH OR VIA THE TRX SITE, TRX SERVICES, OR TRX PRODUCTS, INCLUDING INFORMATION AND PROGRAMS TAILORED SPECIFICALLY FOR YOU, AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE TRX SITE OR TRX SERVICES OR PROVIDED WITH TRX PRODUCTS OR OTHERWISE COMMUNICATED TO YOU THROUGH THE TRX SITE OR TRX SERVICES. THE USE OF INFORMATION PROVIDED THROUGH THE TRX SITE, TRX SERVICES OR TRX PRODUCTS IS SOLELY AT YOUR OWN RISK.
b. Medical Disclaimer. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING TRX PRODUCTS AND TRX SERVICES AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR MEDICAL PROFESSIONAL OR GO TO THE NEAREST HOSPITAL. IN USING TRX PRODUCTS OR TRX SERVICES, YOU AFFIRM THAT YOUR PHYSICIAN HAS APPROVED YOUR USE OF THE TRX PRODUCTS OR TRX SERVICES.
c. Release of Liability. Using TRX Services and TRX Products, involves the risk of injury to you, whether you or someone else causes it. Specific risks vary from one activity to another and the risks range from minor injuries to major injuries such as catastrophic injuries including death, whether they are physical or mental in nature.
EXCEPT AS OTHERWISE PROVIDED BY STATUTE, IN CONSIDERATION OF YOUR PARTICIPATION IN THE ACTIVITIES OFFERED BY TRX IN CONNECTION WITH TRX SERVICES OR TRX PRODUCTS, YOU UNDERSTAND AND VOLUNTARILY ACCEPT THIS RISK AND RELEASE TRX, AND EACH OF ITS RESPECTIVE AFFILIATES, AND EACH OF THEIR OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, VOLUNTEERS, AGENTS AND INDEPENDENT CONTRACTORS THEREOF (THE "RELEASEES") FROM ANY AND ALL LIABILITY FOR INJURY, INCLUDING, WITHOUT LIMITATION, PERSONAL, BODILY, OR MENTAL INJURY, ECONOMIC LOSS, OR ANY DAMAGE TO YOU, RESULTING FROM YOUR USE OF TRX SERVICES OR TRX PRODUCTS, WHETHER RELATED TO EXERCISE OR NOT.
YOU FURTHER AGREE TO HOLD HARMLESS, DEFEND AND INDEMNIFY THE RELEASEES FROM ALL LIABILITY, DAMAGES, DEFENSE COSTS, INCLUDING ATTORNEYS' FEES, AND ANY OTHER COSTS INCURRED IN CONNECTION WITH CLAIMS BROUGHT BY YOU; PROVIDED, HOWEVER, THAT YOUR OBLIGATION TO HOLD HARMLESS, DEFEND AND INDEMNIFY THE RELEASEES SHALL BE WAIVED IF AND TO THE EXTENT THAT AN ARBITRATOR OR COURT OF PROPER JURISDICTION FINDS THAT ONE OR MORE OF THE RELEASEES EXHIBITED ORDINARY NEGLIGENCE, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT IN RELATION TO THE ACTION OR INACTION LEADING TO THE LIABILITY INCURRED BY YOU.
To the extent any portion of this release is deemed to be invalid, the remaining portions of the release shall remain binding and available for use by the releasees and their respective counsel in any proceeding. By agreeing to this release, under no circumstances are you waiving your rights to sue, although you are limiting your rights to certain damages.
TRX may refuse or cancel your membership or deny you access to TRX Services if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
5. TRX SERVICES ACCOUNT REGISTRATION
a. Account Registration. While you may always browse the public-facing portions of TRX Services without registering with us, in order to enjoy certain benefits of TRX Services, you may be required to register an account with us.
b. Account Profile Information; Accuracy of Information. You may not use or impersonate someone else's (or another entity’s) name, or any name, location or other public profile information (including your picture) that violates any third party rights or that is offensive, obscene or otherwise objectionable (in TRX’s sole discretion). We reserve the right to disallow, cancel, remove, or reassign certain usernames and permalinks in appropriate circumstances, as determined by us in our sole discretion, and we may, with or without prior notice, suspend or terminate your Account if activities occur on your Account which, in our sole discretion, would or might constitute a violation of these Terms, cause damage to or impair the TRX Services, infringe or violate any third party rights, damage or bring into disrepute the reputation of TRX, or violate any applicable laws or regulations. When creating an Account, you represent and warrant that you will provide true, accurate, current, and complete information to TRX. You will update the information about yourself promptly, and as necessary, to keep it current and accurate. If messages sent to the e-mail address you provide are returned as undeliverable, then TRX may terminate your Account immediately without notice and without any liability.
c. Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You may not share the credentials for your Account with any third party. You acknowledge and agree that you shall safeguard the confidentiality of your password and use commercially reasonable efforts to prevent unauthorized access to your account. For example, if you are using a Device that others have access to, log out of your account after using the TRX Services. If you become aware of an unauthorized access to your account, change your password and notify us immediately at firstname.lastname@example.org.
6. SALE AND DELIVERY OF TRX PRODUCTS AND PURCHASES OF TRX SERVICES
b. Delivery of TRX Products. All TRX Products ordered will be delivered to the shipping address you provide as soon as reasonably possible and in any event within 30 days after the day on which we accept your order. Note that all orders are subject to availability and we will let you know if you order will not be ready for delivery within the time period that we’ve promised to you – in which case, you have the right to cancel your order and get a refund for any amounts you have paid for the order. The costs of delivery will be displayed to you on our website. The TRX Product will be your responsibility from the time we deliver the TRX Product to the address you gave us.
c. Memberships/Subscriptions. Certain of TRX Services may require that you register as a member of TRX Services and enter into a membership agreement for continued access to our live and on-demand classes, one-on-one training sessions with a personal trainer, content and other features (a “Subscription”). Up to date information about our then-current Subscription requirements are available on the TRX Site and/or by other means through TRX Services. Once you register for an Account, you may register for a Subscription in accordance with our applicable membership terms or make certain non-Subscription purchases as described in Section 6 below and from time to time on the TRX Site or through the TRX Services. YOU ACKNOWLEDGE THAT PRICES FOR ALL OR ANY PART OF TRX SERVICES MAY BE SUBJECT TO CHANGE. SUCH CHANGES WILL BE POSTED ON THE TRX SITE AND YOU WILL BE NOTIFIED THROUGH THE TRX SERVICES OR VIA EMAIL OR SUCH OTHER METHOD AS REQUIRED BY APPLICABLE LAW FROM TIME TO TIME.
d. Non-Subscription Purchases. TRX may permit you to purchase certain classes, courses, sessions, or access to certain events through TRX Services (including, for example, in-person classes and events), in addition to your Subscription or without having a Subscription. For instance, you may purchase one-on-one personal training sessions with a live trainer with personalized recommendations based on your fitness needs and ability or you may purchase access to a specific online, live or on-demand class available through TRX Services. You will be charged a fee for each class, course, session or event made available to you through TRX Services for which you decide to purchase. You acknowledge and agree that these Terms apply to any such purchase you make, and you will be responsible to pay the applicable fees, which may be charged in advance and which may change at any time. Cancelling any purchases shall be subject to TRX’s cancellation policy which will be posted on the TRX Site or the Application.
e. Billing Authorization. You may be asked to provide a credit, charge or debit card number from a card issuer so that you can make purchases through TRX Services or the TRX Site. Your authorizations in this section also apply to our payment processor and any other company who acts as a billing agent for us. You hereby authorize us to charge your specified payment method, in advance, for any purchases made through TRX Services or the TRX Site and/or to place a hold on your payment method with respect to any unpaid charges. You authorize the issuer of your selected payment method to pay any amounts described herein without requiring a signed receipt, and you agree that these Terms shall be accepted as authorization to the issuer of the payment provider to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your payment method until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither TRX, nor any TRX agent, will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified payment method as contemplated by these Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.
f. Third-Party Payment Processor. You agree to pay us, through our payment processor or financing partner (as applicable), all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the payment method you provide when you set up your account or when you initially authorize such payment. We reserve the right to correct, or to instruct our payment processor or financing partner to correct, any errors or mistakes, even if payment has already been requested or received.
g. Bill Inquiries and Refunds. If you believe you have been billed in error, please notify us by contacting us at email@example.com. Refunds or credits are subject to return and refund policies set forth on the TRX Site.
h. Policies and Support for TRX Products and TRX Services. Please visit the TRX Site for FAQs, information and policies relating to warranties, satisfaction guarantees, returns, cancellations and other relevant information regarding TRX Products and TRX Services. TRX reserves the right to change its policies at any time.
7. TERM, TERMINATION, AND ACCOUNT DELETION
a. Term. These Terms begin on the date you first use the TRX Services or TRX Products and continue as long as you have an account with us for TRX Services and/or continue to use the TRX Services or TRX Products or until you end these Terms or we end these Terms as described below.
b. Termination for Breach. TRX may, in TRX’s sole discretion, suspend, disable, or delete your account (or any part thereof) for TRX Services or block or remove any User Content (defined below) that you submitted if TRX determines that you have breached these Terms or that your conduct or User Content would tend to damage TRX’s reputation and goodwill. If TRX deletes your account for these reasons, you may not re-register for or use the TRX Services under any other user name or profile. TRX may block your access to the TRX Services to prevent re-registration.
c. Your Rights of Termination. When you can end these Terms will depend on what you have bought, whether there is anything wrong with it, how we are performing and when you decide to end these Terms. If you are ending these Terms for any of the following reasons, these Terms will end immediately and we will refund you in full for any TRX Offerings which have not been provided. The reasons are: (i) we have told you about an upcoming change to the product or these terms which you do not agree to; (ii) we have told you about an error in the price or description of the TRX Product you have ordered and you do not wish to proceed; (iii) there is a risk that supply of the products may be significantly delayed because of events outside our control; (iv) we have suspended supply of the products for technical reasons, or notify you we are going to suspend them for technical reasons; or (v) you have a legal right to end the contract because of our breach of these Terms.
If what you have bought is faulty or misdescribed you may have a legal right to end these Terms (or to get the TRX Product repaired or replaced or a TRX Service re-performed or to get some or all of your money back). If you have just changed your mind about the TRX Product you may be able to get a refund if you are within the TRX return policies applicable from time-to-time, but this may be subject to deductions and you will have to pay the costs of return of any TRX Products.
d. You do not have a right to change your mind in respect of: (i) digital products (e.g., the TRX Services) after you have started to download or stream these; or (ii) TRX Services once these have been completed, even if the cancellation period is still running.
e. Effect of Termination/Account Deletion. Upon termination of these Terms (including if TRX deletes your account as permitted herein) all licenses granted by TRX will terminate. The following sections survive termination: Professional Advice and Medical Disclaimers in using TRX Products and TRX Services (Section 4); Term, Termination, and Account Deletion (Section 7); Intellectual Property (Section 8); User Content (Section 10); Indemnification (Section 15); General Disclaimers (Section 16); Limitation of Liability (Section 17); Legal Disputes (Section 18); and all general provisions. If your account is deleted for any reason, User Content may no longer be available and TRX is not responsible for the deletion or loss of such User Content. For clarity, if you cancel your Subscription or it is terminated for any reason, you will lose access to all live and on-demand classes, one-on-one personal training sessions, and any other content or features provided through the TRX Services. TRX, in our sole discretion, may make available a very limited amount of content or features to non-subscribers from time to time, and any use of the limited TRX Services made available to you is governed by these Terms. Further, if we end these Terms due to your breach of these Terms, we will refund any money you have paid in advance for TRX Products we have not provided but we may deduct or charge you reasonably compensation for the net costs we will incur as a result of your breaching these Terms.
8. INTELLECTUAL PROPERTY; OWNERSHIP
a. TRX Intellectual Property. You acknowledge that the TRX Products and TRX Services contain products, software, other content or features that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed, and are all owned and operated by TRX (collectively, “TRX Property”). For example, TRX Products (including components and methods of using such TRX Products) such as the TRX Suspension Trainer™ and the TRX Rocker® are protected by multiple U.S. and International Patents, Design Patents, and Pending Patent Applications. In addition, any and all content included on TRX Services such as training courses, exercise programs, blogs, or videos are the copyright property of TRX, or these have been granted for use under a limited license to TRX. All TRX-generated content, and content provided to TRX by our partners and licensors, is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, as between you and TRX, TRX owns a copyright in the selection, coordination, arrangement and enhancement of all content in the TRX Services.
b. TRX Trademarks. TRX, TRX TRAINING ZONE, TRX TRAINING CENTER, TRX TRAINING CLUB, SUSPENSION TRAINING, SUSPENSION TRAINER, DUO TRAINER, FITNESS ANYWHERE, MAKE YOUR BODY YOUR MACHINE, RIP, RIP TRAINER, TRX ROCKER, TRX CORE, GET WITH THE MOVEMENT, XMOUNT, TRX CERTIFIED, TRX LIVE, BANDIT, and INVIZI-MOUNT are a non-exhaustive list of some of the trademarks of TRX. Other trademarks are pending in the United States and internationally. The TRX name, logos and affiliated properties, designs and marks are the exclusive property of TRX and/or our affiliates, whether registered or unregistered, and may not be used in connection with any product or service that is not ours, or in any manner that is likely to cause confusion as to our endorsement, affiliation or sponsorship of any person, product or service. Nothing contained on or with the TRX Products or TRX Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or other intellectual property without our express prior written consent. You may not represent yourself to be an authorized reseller of the TRX Products or TRX Services or suggest any endorsement or partnership with TRX without our express prior written consent. If you plan to use TRX Products or TRX Services in connection with any commercial activity other than through a Subscription or as set forth in a separate agreement between you and TRX, you must receive prior consent from TRX. TRX reserves the right to request any changes or removal of the TRX displayed in any commercial setting (e.g., an auction, showroom, conference, live demonstration, event, etc.) Any other trademarks appearing on TRX Products or TRX Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content that they make available through the TRX Services. All rights not expressly granted in these Terms are reserved.
9. COPYRIGHT POLICY
TRX respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that their User Content does not infringe any third party copyright or other intellectual property rights. All users, including any third party who notifies TRX acknowledges that the TRX Site or TRX Services qualifies as an Internet Service Provider under the law. If you believe TRX content or third-party content infringe your rights, you may notify TRX. Upon receiving a valid notice under 17 U.S.C. § 512(c)(3), TRX will promptly and preemptively remove materials from the TRX Site and TRX Services in accordance with the Digital Millennium Copyright Act (“DMCA”). A reporting user must then help TRX as it evaluates any notified claim. In addition, TRX may, when appropriate, terminate the accounts of repeat copyright infringers.
To help TRX evaluate your claim of infringement, please provide at least the following information:
(a) Your name, address, telephone number, and email address.
(b) A description of the copyrighted work that you claim has been infringed and if available a copy of the certificate number.
(c) A description of where on the TRX Site or with TRX Services the material that you claim is infringing may be found, sufficient for TRX to locate the material (e.g., the URL).
You may submit this information via email, with the subject line “DMCA Notices DCMA-1037611” to: firstname.lastname@example.org or email@example.com .
A written notification offline should be sent to:
Attn: Legal Department – DMCA Notice DMCA-1037611
1990 N. California Blvd.
Suite 20 PMB 1058
Walnut Creek, CA 94596, USA
The above (a) to (c) elements may not considered to sufficient to meet the requirements of 17 U.S.C. § 512(c)(3). If you want to invalidate the DMCA Safe Harbor of TRX, please make sure you provide a notice valid under the law.
10. USER CONTENT
a. Content; User Content. Any text, image, photo, graphics, video, audio, any type of recording, content, materials, information or other works of authorship (“Content”) that is submitted, transmitted, displayed or uploaded to the TRX Services by or on behalf of users in using the TRX Services (“User Content”), whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations (including but not limited to laws related to recording, intellectual property, privacy and export control). For example, your User Content must not include third party intellectual property (such as copyrighted material, and for example, music) unless you have permission from all third parties appearing in or that are included in your User Content or you are otherwise legally entitled to do so. You acknowledge that all Content, including User Content, accessed by you using the TRX Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom. We make no representations, warranties or guarantees with respect to any Content that you access on or through the TRX Services. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as posts or comment you make) may not be completely removed and copies of your User Content may continue to exist on TRX Services. Other than as required by applicable data protection laws, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. TRX does not guarantee any anonymity or confidentiality with respect to any User Content.
b. User Content License. Excluding TRX Property, as between you and TRX, you own (or have the rights necessary to grant to TRX the rights below to) all User Content that you submit to the TRX Services, and that TRX will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant TRX a worldwide, perpetual, irrevocable, non-exclusive, sublicensable, transferable, royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or later created), edit or modify your User Content (in whole or in part) and make derivative works (including, but not limited to, translations) from your User Content, including your (and others’) name, likeness, voice and persona in your User Content, for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the TRX Services a worldwide, non-exclusive, royalty-free license, including course instructors or trainers (if applicable), permission to access, view and use your User Content (including your (and others’) name, likeness, voice and persona in your User Content), including to reproduce, distribute, prepare derivative works, display and perform your User Content, as enabled by a feature of the TRX Services (including for purposes related to your personal training sessions (if applicable)) or otherwise in connection with the TRX Services.
c. Feedback. If you make suggestions to TRX or through the TRX Site or TRX Services about improving or adding new features or products to the TRX Products or TRX Services or you otherwise provide feedback or testimonials, you grant TRX a worldwide, perpetual, irrevocable, non-exclusive, sublicensable (through multiple tiers), transferable royalty-free license and right to use your suggestions, feedback and testimonials without any compensation or other obligation to you.
11. COMMUNITY POLICIES
You agree not to do any of the following which would violate our community policies for using the TRX Services:
a. You may not upload, post, submit, distribute or transmit (collectively, “submit”) to any portion of the TRX Services any User Content that: (i) infringes any third party's patent, copyright, trademarks, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) is defamatory, obscene, pornographic, vulgar or offensive; (iii) contains profanity or promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) harms or exploits minors; (v) is violent or threatening or promotes violence or actions that are threatening to any person, animal or entity; (vi) is fraudulent, false, misleading or deceptive; (vii) violates any law or encourages others to violate any law; (viii) promotes illegal or harmful activities or substances; or (ix) relates to issues such as religion, politics, or other potentially incendiary topics, or content that is racist, offensive, pornographic, or otherwise objectionable.
b. In using the TRX Services, you must behave in a civil and respectful manner at all times; and you represent and warrant that, you will not: (i) act in a deceptive manner by, among other things, impersonating any person or impersonating or misrepresenting your affiliation with any person or entity; (ii) harass or stalk any other person; (iii) distribute "spam" or post or misuse personal or sensitive information of any person, including street address, email address, identification numbers, medical condition, and similar information; (iv) collect information about others; (v) advertise or solicit others to purchase any product or service not specifically authorized by TRX; (vi) engage in any conduct that is offensive or illegal; (vii) use, display, mirror or frame the TRX Services or any individual TRX Offering or individual element of the TRX Services, the TRX name, any TRX trademark, logo or other proprietary information, or the layout and design of any page or form contained on page, without TRX’s prior written consent, (viii) use TRX Services or Content from TRX Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms or authorized in writing by TRX; (ix) copy, use, index, disclose or distribute any information or data obtained from the TRX Services, whether directly or indirectly through third parties (such as search engines) without TRX’s prior written consent; (x) disseminate or host harmful content including without limitation, viruses, Trojan horses, worms, time bombs, zombies, cancelbots, or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data or personal information; (xi) violate any other community rules or codes of conduct that TRX may impose; or (xii) encourage or enable any other individual to do any of the foregoing.
TRX has the right, but not the obligation, to monitor all conduct on and Content submitted to the TRX Services. TRX may alter, edit, remove, or refuse to post any Content, software and/or applications, in whole or in part, in TRX’s sole discretion or to satisfy or comply with applicable laws, regulations, legal processes and/or maintain the integrity and reputation of TRX Services and TRX’s systems.
12. USING TRX SERVICES AND THIRD PARTIES
a. Other User Interactions. When interacting with other users of the TRX Services, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other people you do not know. Your participation, correspondence or personal or business dealings with any third party found on or through the TRX Services are solely between you and such third party. You agree that TRX is not responsible or liable for any loss, damage, injury, or other matters of any sort incurred as the result of such dealings.
b. Third Party Applications and Devices. TRX Services is integrated with or may otherwise interact with third party applications, websites and services (“Third Party Applications”) and third party Devices to make the TRX Services available to you. These Third Party Applications and Devices may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications and Devices will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that TRX does not endorse and is not responsible for the behavior, features, or content of any Third Party Application or Device or for any transaction you may enter into with the provider of any such Third Party Applications and Devices, nor does TRX warrant the compatibility or continuing compatibility of the Third Party Applications and Devices with the TRX Services. By using Third Party Applications, you agree that TRX may transfer information to the applicable Third Party Application. Third Party Applications are not under TRX control, and, to the fullest extent permitted by law, TRX is not responsible for any Third Party Application’s use of your exported information.
d. App Stores. You acknowledge and agree that the availability of the Application and the TRX Services is dependent on the third party from whom you received the Application license, e.g., the Apple App Store (the “App Store”). You acknowledge that these Terms are between you and TRX and not with the App Store. TRX, not the App Store, is solely responsible for the TRX Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.
f. Notice Regarding Apple. This paragraph only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and TRX only, not with Apple Inc. (“Apple”), and Apple is not responsible for the TRX Services or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the TRX Services. If the TRX Services fail 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 TRX Services. Apple is not responsible for addressing any claims by you or any third party relating to the TRX Services or your possession and/or use of the TRX Services, including: (i) product liability claims; (ii) any claim that the TRX Services fail to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the TRX Services and/or your possession and use of the TRX Services infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the TRX Services. 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: (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
13. THIRD PARTY OFFERINGS
14. YOUR REPRESENTATIONS AND WARRANTIES
For each piece of User Content that you submit, you represent and warrant that: (i) you have the right to submit the User Content to TRX and grant the licenses set out above; (ii) TRX will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the User Content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) the User Content complies with these Terms and all applicable laws.
You agree to be responsible and liable to TRX and our directors, officers, employees, and agents (on an indemnity basis) for all claims, damages, losses and costs that arise from or relate to (i) your use of the TRX Products or TRX Services, (ii) any User Content or feedback submitted by or on behalf of you, (iii) your violation of these Terms, or (iv) any law or the rights of any third party (including any dispute or issues between you and any third party).
16. GENERAL DISCLAIMERS
a. TRX provides the TRX Products and TRX Services on an “AS IS” and “AS AVAILABLE” basis with NO GUARANTEES made with respect to any results of any kind. Your use of the TRX Products and TRX Services is at your own risk. No advice or information provided by TRX, a TRX trainer or a TRX instructor will create any warranty not expressly made herein. Other than as expressly provided in writing by TRX in connection with your purchase of the TRX Products or TRX Services and subject to such acts, omissions or other terms that cannot be disclaimed or waived by law, TRX expressly disclaims and negates all warranties of any kind, whether express or implied, including, but not limited to implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law with respect to the TRX Products or TRX Services to the extent it can be excluded in accordance with applicable law. Further, TRX does not warrant or make any representations concerning the accuracy, likely results, reliability regarding the use or availability of or access to the TRX Products or TRX Services or otherwise relating to any materials or Content made available through the TRX Site or TRX Services (including any third party’s use of your User Content) or with regard to any sites that may be linked to the TRX Site or TRX Services.
b. TRX may update, add to, enhance, modify, remove or alter any content or features of the TRX Services at any time, in our sole discretion. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the TRX Services. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the TRX Services.
c. If you access the TRX Services from a location outside of the United States, you do so on your own initiative and are responsible for compliance with all applicable laws of your jurisdiction. TRX makes no representation that the TRX Services are appropriate or available for use in locations outsides of the United States and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the TRX Services from other locations do so on their own initiative and are responsible for compliance with local laws.
d. TRX in its sole discretion may offer free, trial or beta TRX Services from time to time at no charge. Notwithstanding anything to the contrary in these Terms: (i) any free, trial or beta TRX Services are provided “AS IS” with no warranties of any kind and (ii) TRX may discontinue any free, trial or beta TRX Services or your ability to use such TRX Services at any time, with or without notice and without any further obligation to you. Without limiting the generality of the foregoing, free TRX Services that have not been accessed or used for 12 consecutive months may be terminated by us. TRX will have no liability for any harm or damage suffered by you or any third party in connection with any free, trial or beta TRX Services.
e. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY TO THE TRX SERVICES, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE TRX SERVICE, AND NO WARRANTIES WILL APPLY AFTER SUCH PERIOD.
17. LIMITATION OF LIABILITY
In no event shall TRX, its partners, vendors, licensors, advertisers, agents, representatives or suppliers be liable for any indirect, incidental, special, consequential, punitive, or exemplary losses or damages (including, without limitation, damages for loss of data or profit, or due to business interruption, loss of goodwill or other intangible losses). TRX’s total liability to you for all claims, in the aggregate, will not exceed that amount actually paid by you to TRX over the three (3) months preceding the date your first claim(s) arose. These limitations on TRX liability to you shall apply irrespective of whether TRX has been advised of or should have known of the possibility of any such losses. If you live in a jurisdiction that does not allow certain exclusions or limitations of liability, the above exclusions or limitations may not apply to you. To the extent that one or any aspect of TRX’s limitations set forth above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between TRX and you.
18. LEGAL DISPUTES – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
a. Arbitration. YOU AND WE AGREE THAT ALL DISPUTES BETWEEN YOU AND US OR OUR OFFICERS, DIRECTORS OR EMPLOYEES IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT, YOUR USE OF THE TRX SERVICES, AND/OR RIGHTS OF PRIVACY OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE JAMS, INC. (“JAMS”) RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES IN EFFECT AT THE TIME OF DISPUTE, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT EITHER PARTY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE EQUITABLE RELIEF IN ANY U.S. COURT HAVING JURISDICTION TO PROTECT AGAINST AN INFRINGEMENT OR MISAPPROPRIATION OF THAT PARTY’S INTELLECTUAL PROPERTY RIGHTS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
b. Small Claims Court. As an alternative, you or we may bring a claim in your local “small claims” court, if permitted by that small claims court’s rules and within such court’s jurisdiction, unless the action is transferred, removed or appealed to a different court. You may bring such claims only on your own behalf.
c. Class Action Waiver. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLAIM YOU MAY HAVE AGAINST US, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision is governed by the Federal Arbitration Act and not by any state law concerning arbitration. If JAMS is unwilling or unable to set a hearing date within 160 days of filing, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
d. Time Limitation. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with your relationship with us, including the use of the TRX Services or these Terms, must be filed within one year after such claim or cause of action arose or be forever banned.
e. Fees. Your arbitration fees will be limited to those fees set forth in the JAMS Rules for Arbitration of Consumer-Related Disputes with the remainder paid by TRX.
f. Survival. This Section 18 will survive the termination of your relationship with us. If any of the prohibitions against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable under applicable law, then such provisions will be null and void and severed from these Terms.
19. GOVERNING LAW
These Terms will be governed by the laws of the State of California, United States of America, without regard to principles of conflicts of law that would require a different result. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply. Subject to the foregoing agreements in Section 18, any other action arising out of or relating to these Terms or your use of the TRX Services or TRX Products must be commenced in the state or federal courts located in San Francisco, California, United States of America, and you consent to the jurisdiction of those courts.
20. INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES; FORCE MAJEURE
Headings are for convenience only and will not be used to construe the terms of these Terms. If any term of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms and the remaining terms will remain in full force and effect. No failure or delay by TRX in exercising any right hereunder will waive any further exercise of that right. TRX's rights and remedies hereunder are cumulative and not exclusive. TRX will not be liable to you for any delay in delivery of any TRX Product or your inability to access the TRX Services, including any delay or lack of access due to an event beyond TRX’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, pandemic, epidemic, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of TRX’s control. TRX will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under these Terms or any order that is caused by events outside TRX’s reasonable control.
21. SUCCESSORS; ASSIGNMENT; NO THIRD-PARTY BENEFICIARIES
These Terms is binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign or transfer these Terms without TRX’s prior written consent. No third party has any rights hereunder. TRX may assign our rights, obligations and/or these Terms at any time in our sole discretion without notice to you.
You consent to receive all communications including notices, agreements, disclosures, or other information from TRX electronically. TRX may communicate by email or by posting to the TRX Services. For support-related inquiries, you may email firstname.lastname@example.org. For all other notices to TRX, write to the following address:
Attn: Legal Department
1990 N. California Blvd.
Suite 20 PMB 1058
Walnut Creek, CA 94596
Nothing in these Terms or otherwise limits TRX’s right to object to subpoenas, claims, or other demands.
23. 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 TRX Services or to receive further information regarding use of the TRX Services.
24. EXPORT CONTROL
You acknowledge that the TRX Services and TRX Product may be subject to export control laws and other laws and regulations of the United States and other countries, and that if TRX ships TRX Product to you, TRX 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 TRX Services 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 TRX Services or TRX Products 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 TRX harmless against all claims, damages, or liability resulting from breach of the foregoing.
25. ENTIRE AGREEMENT
These Terms incorporate any applicable Additional Terms which may apply to a TRX Offering, as well as any other policies or procedures referenced herein that are posted to the TRX Site at www.trxtraining.com.
If there is a conflict between any policies posted on the TRX Services and the terms of these Terms, the terms of these Terms will control. We intend to rely on these Terms. If you require any changes to these Terms, the TRX Products or TRX Services, and we agree to them, please make sure you ask for them to be put in writing. This can help avoid any problems about what you expect from us and what we expect from you.