CHANGES TO THE TERMS
These Terms may change as we continue to evolve our business, as well as the Digital Properties or any portion thereof. If we change these Terms, we will post the revised document here and such changes will be effective immediately upon that posting. Your continued use of the Digital Properties constitutes your acceptance of such changes and agreement to be bound by the modified Terms, and so we recommend that you review these Terms periodically when accessing or using the Digital Properties.
We recommend that you print or otherwise save a copy of these Terms, as updated from time to time, for your reference.
These terms were last updated: 22 AUGUST, 2019
ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
Informal Dispute Resolution
Our goal is to do our best to ensure that every experience with Elements will exceed your expectations. If that doesn’t happen, we hope you will give us the opportunity to try to address any problem or concern. To do so, please contact us by visiting When contacting us, we ask that you include your name, address, phone number and email address, and a description of your problem or concern and any specific relief you seek.
By using the Digital Properties, you and Elements Fitness and Salon agree to submit any and all Disputes (as defined below) to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), which shall govern the interpretation and enforcement of this arbitration agreement (“Arbitration Agreement”). Arbitration shall be before either (1) JAMS (formerly known as Judicial Arbitration and Mediation Services), www.jamsadr.com, or (2) the American Arbitration Association (“AAA”), www.adr.org. If you initiate arbitration, you shall have the choice as between these two arbitration forums; if Equinox initiates arbitration, it shall have the choice as between these two arbitration forums.
WE EACH AGREE THAT, EXCEPT AS PROVIDED IN THE DEFINITION OF DISPUTES BELOW, ANY AND ALL DISPUTES WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, INCLUDING ALL ISSUES RELATING TO THE ENFORCEABILITY, INTERPRETATION, SCOPE, AND APPLICATION OF THIS ARBITRATION AGREEMENT (SUCH AS “GATEWAY” ISSUES OF ARBITRABILITY, WHETHER THE ARBITRATION AGREEMENT IS UNCONSCIONABLE OR ILLUSORY AND ANY DEFENSE TO ARBITRATION) WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT BY A JUDGE OR JURY, IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
Class Action Waiver
By using the Digital Properties, you agree that the arbitration of any Dispute (as defined below) shall be conducted on an individual, not a class-wide basis, and that no such arbitration proceedings may be consolidated with any other arbitration or other legal proceedings involving Elements Fitness and Salon or any other person. You further agree that you, and anyone asserting a claim through you, will not be a class representative, class member, or otherwise participate in a class, representative, or consolidated proceeding against Elements Fitness and Salon. We and you agree that the arbitrator of any Dispute between us may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claim (such as a class action, representative action, consolidated action or private attorney general action).
If the foregoing class action waiver (“Class Action Waiver”) or any portion thereof is found to be invalid, illegal, unenforceable, unconscionable, void or voidable, then the Arbitration Agreement will be unenforceable, and the Dispute will be decided by a court. Any claim that all or part of the Class Action Waiver is invalid, illegal, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
Definition of Dispute
Except as described below, the term “Dispute” in this Arbitration Agreement and Class Action Waiver means any dispute, claim, or controversy between you and Elements regarding any aspect of your relationship with Elements Fitness and Salon, whether based in contract, statute, regulation, ordinance, tort (including without limitation fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal, statutory or equitable theory, whether related to the access to and use of the Digital Properties or otherwise, and includes the validity, enforceability or scope of these Terms, except for the scope, enforceability and interpretation of the Arbitration Agreement and Class Action Waiver.
However, “Disputes” SHALL NOT include claims that all or part of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable, or any claim for public injunctive relief, i.e., injunctive relief that has the primary purpose and effect of prohibiting alleged unlawful acts that threaten future injury to the general public. Such claims may be determined only by a court of competent jurisdiction and not by an arbitrator.
How Will the Arbitration Work?
Either you or Elements Fitness and Salon may initiate arbitration proceedings. The arbitration will be conducted before a single arbitrator. The arbitration will be an individual arbitration, and shall in no event be commenced as a representative or class arbitration.
If you or Elements initiate arbitration, you and we have a choice of doing so before JAMS or the AAA:
For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at or by calling 1-800-352-5267.
Which particular rules apply in AAA arbitration will depend on how much money is at issue. For less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes/Consumer Arbitration Rules will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at or by calling 1-800-778-7879.
If required for the enforceability of the Arbitration Agreement under the Federal Arbitration Act, Equinox will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.
Where Will the Arbitration Be Held?
You can bring the arbitration in either California or in the state where you live if there is a JAMS or AAA in that state. In the event that Elements Fitness and Salon initiates an arbitration, it will only do so in the state where you live before either JAMS or AAA, unless there is no JAMS or AAA in your state, in which case Elements Fitness and Salon may initiate the arbitration in California. As set forth in “Governing Law” section below, the arbitrator will apply California law.
access to the digital properties
The Digital Properties are intended for use by adults who reside in the United States, or those adults outside of the United States who, by using the Digital Properties, consent to use of the Digital Properties in accordance with United States laws, these Terms. If you choose to access the Digital Properties from locations outside of the United States, you do so on your own initiative and at your own risk. By using or attempting to use the Digital Properties, you are representing to Elements Fitness and Salon that you meet the foregoing eligibility requirements and have the legal capacity to enter into and be bound by these Terms.
You are solely responsible for any charges incurred in obtaining access to the Digital Properties, including without limitation charges from your Internet service provider and/or wireless carrier. While you may be able to purchase certain goods or services through the Digital Properties, the Digital Properties themselves are currently provided for free. Elements Fitness and Salon reserves the right to change the nature of this relationship at any time, without prior notice or liability to you. In addition, access to certain Digital Properties or portions thereof may be limited to Elements Fitness and Salon members, as described in the “Your Account” section below.
Elements Fitness and Salon has no obligation to maintain the Digital Properties, in whole or in part, nor does it have any obligation to provide you with any related maintenance or support services. Elements Fitness and Salon reserves the right to render the Digital Properties, in whole or in part, temporarily or permanently unavailable or to otherwise terminate, suspend access to, replace, or modify the Digital Properties, in whole or in part, at any time and for any or no reason, without prior notice or liability to you.
Some portions of the Digital Properties may invite or require you to create an account and associated log-in credentials, and you may not be able to access certain Content or features, functionalities, or services of the Digital Properties, without creating and logging into such an account. In some instances, the right to create an account may be limited to current members of Elements Fitness and Salon in good standing. You agree to provide true, accurate and current information when creating an account, and you are responsible for updating your account information as needed to ensure it remains current. You are responsible for maintaining the confidentiality of your log-in credentials, and you hereby acknowledge and agree that you are fully responsible and liable for all usage and activities that occurs under your account, whether authorized by you or not. You agree to notify Elements Fitness and Salon immediately if you know of or suspect any unauthorized use of your account or password or any other breach of security related to your account. Notwithstanding anything to the contrary in these Terms, Elements reserves the right to deny the creation of, suspend access to or terminate any account(s), or to remove or modify Content, features, functionalities and/or services available to account holders, at any time in its sole discretion and without prior notice or liability to you.
LIMITED RIGHT TO USE THE DIGITAL PROPERTIES
Subject to your compliance with these Terms, Equinox gives you the limited, non-exclusive, non-transferable, and revocable right to access and use the Digital Properties solely for your personal and non-commercial use. However, Elements Fitness and Salon does not give you any right to, and you hereby agree not to do any of the following:
Use the Digital Properties or any portion thereof for any commercial purpose or for the benefit of any other person or entity, including without limitation by selling, renting, leasing, assigning, transferring, hosting, or otherwise commercially exploiting any Digital Property or any portion thereof.
Use a false email address or other identifying information, impersonate any person or entity or otherwise misrepresent your relationship with Equinox.
Use the Digital Properties for any unlawful purposes.
Copy, stream, reproduce, duplicate, archive, store (other than standard browser caching), download, publish, modify, make derivative works of, reverse engineer, translate, or distribute any Digital Property or portion thereof by any means, other than as expressly allowed by these Terms or as otherwise clearly contemplated by the features and functionalities of the Digital Properties – for example, by sharing Content through a social media “share” feature or downloading and using the Elements Fitness and Salon mobile app. You may also print or save to your computer, phone or personal device a reasonable number of pages from the Digital Properties, but solely for your own personal, internal and non-commercial purposes.
Remove, alter, bypass, avoid or circumvent any copyright, trademark or other proprietary notice, digital rights management mechanisms or other content protection measures included in or associated with the Digital Properties or any Content. Similarly, you may not modify, remove, or otherwise interfere with any embedded player that may made available in connection with certain Content.
Use any software robots, spiders, crawlers, or similar data mining, gathering or extraction tools or methods, whether automated, programmed or manual, including without limitation to access, acquire, copy, monitor or make submissions through any portion of the Digital Properties.
Knowingly or intentionally take any other action that may impose an unreasonable burden or load on the Digital Properties or its servers and infrastructure.
Any unauthorized use by you, or otherwise under your account or on your computer or personal device, of the Digital Properties any portion thereof will immediately terminate the limited rights granted to you under these Terms, and such termination will be without prejudice to any other right or remedy Elements Fitness and Salon may have under applicable law or in equity.
Certain features or functionalities of the Digital Properties may permit you to upload, post or share your content, images, videos, pictures, statements and comments (collectively, “User Content”) and/or comment on or otherwise interact with other Digital Property users and their postings. You are solely responsible and liable for your User Content and for your use of the Digital Properties, including your interactions with other users and any disputes or disagreements that may arise in connection therewith. User Content may not reflect our views, and Elements Fitness and Salon does not endorse any User Content that you or others provide. You acknowledge and agree that you may find your interactions with other users, as well as their User Content, objectionable, offensive or otherwise inappropriate and you shall have no right against Elements Fitness and Salon based on User Content of others, to the maximum extent permitted by law.
As a condition of your right to access and use the Digital Properties, you hereby acknowledge and agree to comply with the following rules:
In the Public Eye: Your User Content and interactions with other users must be suitable for presentation in a public forum. User Content that you upload, post or share will not be treated as confidential and will be made available to, and may be read, collected, recorded, copied and used by, other users of the Digital Properties. Your User Content may not contain, any personally identifiable information, including contact information, for you or any person.
No Foul Play: You may not use the Digital Properties to bully, threaten, abuse, harass, degrade or mock any other user. Your User Content and interactions with other users may not contain, depict or promote any threats to any person, place, business or group or any damage to or theft of physical or personal property. You may not interfere with any other user from enjoying or using the Digital Properties.
Keep It Clean: Your User Content and interactions with other users may not contain, depict, or promote any libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent (including by virtue of nudity), lewd, or otherwise inappropriate content. Your User Content may not contain or depict, and you may not use, any symbols, words or slurs that are widely considered offensive to individuals of a certain race, gender, ethnicity, religion, sexual orientation or socioeconomic group.
Play It Safe: Your User Content and interactions with other users may not contain, depict or promote any unreasonably dangerous or reckless behavior or activity, including without limitation violence, abuse, cruelty to animals, use of illegal drugs, excessive or inappropriate use of alcohol or legal drugs or any conduct that constitutes a criminal offense or gives rise to civil liability.
Own It: You must own your User Content, and you may not upload, share, post, transmit, or otherwise distribute or facilitate the distribution of any content that is fraudulent or that infringes any patent, trademark, copyright, right of publicity, or other intellectual property, privacy or proprietary right of any third party.
Be Yourself: You may not impersonate any other individual or falsely state or misrepresent your professional or other affiliation Elements Fitness and Salon or with any other person or entity.
Not for Sale: Your User Content and interactions with other users may not contain, depict or promote, any advertising or commercial activity, including without limitation by offering products or services, conducting sweepstakes or contests, or otherwise sharing or transmitting unsolicited advertising, spam or junk or bulk messages. You may not use the Digital Properties to solicit or collect personally identifiable information from or about any other users.
Damage Control: You may not upload, share, post or otherwise distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of the Digital Properties, in whole or in part, or any systems or equipment of Elements Fitness and Salon or any other end user. You may not use any bots or automated software or device to upload, post or share User Content or to automatically post comments on other users’ content.
We may require you to provide proof or your compliance with these rules at any time. Elements Fitness and Salon may, but has no obligation to, monitor your use of the Digital Properties, including your User Content and interactions with other users, and reserves all rights to, but shall have no obligation to: (1) refuse to post, or to remove, modify or take other actions to regulate, any of your User Content, in whole or in part, that we determine in our sole discretion does not comply with these Terms or is otherwise objectionable; (2) become involved in any disputes or disagreements between you and other users and to take any other actions that we determine in our sole discretion are appropriate in connection therewith; and (3) disclose your User Content and/or any information provided to or through the Digital Properties or otherwise obtained during any such monitoring, as necessary to satisfy any law, regulation or governmental request.
If you violate any of these rules or otherwise misuse the Digital Properties, Elements Fitness and Salon reserves the right to, in its sole discretion, take, or refrain from taking, any and all steps available to Elements Fitness and Salon, including suspending or terminating your access to the Digital Properties, in whole or in part, reporting you to appropriate law enforcement or governmental officials or seeking other legal or equitable remedies.
As between you and Elements Fitness and Salon, Elements Fitness and Salon owns the Digital Properties and all content displayed or made available on or through, or otherwise included in, the Digital Properties, including without limitation all text, video clips, audio clips, graphics, trademarks, service marks, trade names, logos, icons, images, data, information, code and software, regardless of whether registered or unregistered, and any combinations and compilations thereof, but excluding any User Content (collectively, “Content”). The Digital Properties and Content, including the selection, coordination, arrangement and enhancement of Content and the design, layout and “look and feel” of each Digital Property, constitute valuable intellectual property of Elements Fitness and Salon, and are protected by applicable copyright, trademark and other applicable intellectual property rights and laws.
The Digital Properties and Content are licensed, not sold, to you, and your limited rights to access and use the Digital Properties and Content are conditioned upon your compliance with these Terms. No act of downloading or copying from, or otherwise using, the Digital Properties, even with Element’s permission, will transfer any title, interest or right in or to any Digital Property or Content to you. Elements Fitness and Salon and its licensors hereby expressly reserves all rights not expressly granted in and to the Digital Properties and Content, and may revoke your license to use any part of the Digital Properties or Content at any time.
USER CONTENT + FEEDBACK
We welcome your feedback, comments, reviews, notes, messages, suggestions or other communications (collectively, “Feedback”) regarding the Digital Properties, as well as our club locations, services, products and other offerings. However, by posting or submitting Feedback on or through the Digital Properties, or otherwise sending Feedback to Elements, you are licensing such Feedback to Elements Fitness and Salon pursuant to the following paragraph. All Feedback will be treated as non-confidential, and it is the policy of Elements Fitness and Salon to not accept or consider any unsolicited ideas, confidential information, proprietary information or other Feedback that you do not wish to license to Elements Fitness and Salon, including without limitation ideas for new or improved products, services, apps, technologies, marketing, advertisements promotions or other services, products or offerings and any original creative materials such as stories, videos, computer code, images or artwork (all of the foregoing, collectively, “Unsolicited Ideas”), and therefore you agree not to post, submit or send to Elements Fitness and Salon , on an unsolicited basis. If, despite this policy, you nonetheless chose to post, submit or otherwise send to Elements Fitness and Salon any Unsolicited Idea, by doing so you acknowledging and agreeing that: (1) you are not posting, submitting or sending any confidential or proprietary information; (2) Elements Fitness and Salon has no obligation to review or use the Unsolicited Idea or to keep it confidential; and (3) Elements Fitness and Salon will consider the Unsolicited Idea as Feedback freely and irrevocably licensed to Elements Fitness and Salon, without restriction or liability and without notifying or compensating you, and you hereby agree to waive any and claims against Elements Fitness and Salon in connection with the foregoing.
You will continue to own your User Content and other Feedback (as defined below). However, by uploading, posting or sharing User Content and Feedback, you are granting, and hereby agree to grant, to Elements Fitness and Salon (including its licensees, affiliates, employees, contractors, agents, successors and assigns) a non-exclusive, perpetual, irrevocable, royalty-free, sublicenseable, transferable and worldwide license to use, reproduce, modify, disclose, publish, publicly display, publicly perform, distribute, modify, sublicense and create derivative works of your User Content and Feedback, and incorporate it into other works, in whole or in part and otherwise exploit your User Content and Feedback for any purpose whatsoever anywhere in the world, without restriction or liability and without notifying or compensating you in any way, and you hereby agree to waive any and claims against Elements Fitness and Salon in connection with the foregoing. Elements Fitness and Salon may, but is not obligated to, provide attribution of your User Content or Feedback, and you hereby waive any moral rights you may have in such User Content and Feedback. By uploading, posting or sharing any User Content in which you appear, you are also consenting to the recording, use and reuse by Elements Fitness and Salon (including its licensees, affiliates, employees, contractors, agents, successors and assigns) of your voice, actions, likeness, name, appearance, profile photograph, performance, biographical material, and any other identifying information in your User Content as used or modified by Elements Fitness and Salon in its exercise of the foregoing license.
If you upload, post or share any User Content or Feedback, you may not be able to remove it from the Digital Properties, and we make no guarantees that we will remove or return to you any User Content or Feedback, and are not liable for any loss of or damage to your User Content or Feedback.
THIRD PARTY SITES
Elements Fitness and Salon is not a health care or medical provider. The Digital Properties and the features, functionalities, services and Content made available therein, including without limitation any advice, information, workouts, exercises, regimens, nutritional plans, recipes or other materials (collectively, the “Fitness Features”), are provided for general informational purposes only, and do not constitute medical advice. The Fitness Features are not intended to be relied upon for determining the state of your health or in the diagnosis of any medical conditions and are not, and should not be used as, a substitute for a professional medical evaluation. We advise you to see your physician on a regular basis and to seek their advice prior to engaging in any fitness or nutrition regimen or if you have any questions or concerns regarding your health and fitness regimen or for the diagnosis of specific medical conditions.
Elements Fitness and Salon is not liable or responsible for any consequences of you having read, used or relied upon any Fitness Features. By using any Fitness Feature, you acknowledge and understand that it may involve or provide information regarding strength, flexibility, aerobic, cardio, meditation, regeneration or other exercises, all of which can be potentially hazardous activities. You should consult with your doctor prior to using any Fitness Feature. If you choose to use any Fitness Features, you should be in good health and have no disability, impairment, injury, disease or ailment preventing you from engaging in active or passive exercise or which would cause increased risk or injury or adverse health consequences as a result of using such Fitness Features, and you hereby assume all risks associated with using such Fitness Features. IF YOU EXPERIENCE ANY PAIN, DIFFICULTY, DIZZINESS, ILLNESS, OR DISCOMFORT, WHEN USING ANY FITNESS FEATURE, STOP AND CONSULT YOUR PHYSICIAN OR SEEK EMERGENCY MEDICAL ATTENTION IMMEDIATELY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ELEMENTS FITNESS AND SALON MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE FITNESS FEATURES AND IS NOT RESPONSIBLE FOR YOUR USE OF OR RELIANCE ON ANY SUCH FITNESS FEATURES. YOU ACKNOWLEDGE AND AGREE THAT YOUR DECISION TO RELY ON AND/OR USE ANY FITNESS FEATURE IS AT YOUR SOLE RISK, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ELEMENTS FITNESS AND SALON WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY AND DEATH, ARISING OUT OF OR IN CONNECTION WITH YOUR RELIANCE ON OR USE OF ANY FITNESS FEATURE.
While we endeavor to provide the best digital experience we can, including without limitation by offering accurate and current Content, we cannot and do not guarantee that the Digital Properties or any portion thereof will always be fully-functional, current or accurate. For up-to-date information on club hours, class schedule changes, contact information and any other information regarding any Elements Fitness and Salon club, its operations, programs, and/or offerings, please contact the relevant Elements Fitness and Salon club location or our corporate offices, as described in the “Contact Us” section below.
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE DIGITAL PROPERTIES IS AT YOUR SOLE RISK, AND THAT THE DIGITAL PROPERTIES, AND ALL ASPECTS THEREOF, ARE PROVIDED ON AN "AS IS" AND “AS AVAILABLE” BASIS. Elements Fitness and Salon MAKES NO REPRESENTATIONS OR WARRANTIES, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION: (1) WARRANTIES OF MERCHANTABILITY, TITLE, AVAILABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE; (2) WARRANTIES THAT THE DIGITAL PROPERTIES WILL MEET YOUR REQUIREMENTS, OR OPERATE WITH THE DEVICES, HARDWARE OR SOFTWARE YOU USE; OR (3) WARRANTIES THAT YOUR ACCESS TO AND USE OF THE DIGITAL PROPERTIES WILL BE AVAILABLE, UNINTERRUPTED, CURRENT, OR FREE FROM INACCURACIES, ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR CODE; OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED.
limitations of liability
YOU ALONE ARE RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER HARDWARE, SOFTWARE, SYSTEMS, AND NETWORKS, ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY INFORMATION FROM THE DIGITAL PROPERTIES, AND FOR ANY OTHER DAMAGE THAT MAY BE INCURRED.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE DIGITAL PROPERTIES IS TO STOP USING AND, WHERE APPLICABLE, UNINSTALL THE DIGITAL PROPERTIES.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ELEMENTS FITNESS AND SALON, ITS PARENTS, SUBSIDIARIES OR OTHER AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, SERVICE PROVIDERS, AGENTS, SUCCESSORS OR ASSIGNS (COLLECTIVELY, “ELEMENTS FITNESS AND SALON”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION FOR ANY DEATH, PERSONAL INJURY, LOSS OF USE, LOST DATA, LOST BUSINESS OR LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS.
IN ADDITION, IF AND TO THE EXTENT ELEMENTS FITNESS AND SALON IS LIABLE FOR ANY DIRECT DAMAGES FOR ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE DIGITAL PROPERTIES, OR THESE TERMS, THEN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF ELEMENTS FITNESS AND SALON FOR SUCH DIRECT DAMAGES WILL BE LIMITED TO TEN DOLLARS ($10.00 USD), EVEN IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. IF, PURSUANT TO APPLICABLE STATE LAW, THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IS NOT PERMITTED, THE LIABILITY OF ELEMENTS FITNESS AND SALON SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify and hold Elements Fitness and Salon harmless from and against any and all claims, liabilities, losses, damages, demands, complaints, actions, judgements, settlements, fines, penalties, costs and expenses (including without limitation reasonable attorneys' fees), arising out of or in connection with: (1) your access to and/or use of the Digital Properties or any portion thereof; (2) your User Content, Feedback or Unsolicited Ideas, including without limitation any allegations of infringement; (3) your failure to comply with these Terms or with any applicable law, rule or regulation; (4) your infringement, misappropriation or violation of the Digital Properties or Content or of any third party’s intellectual property right; or (5) any activity occurring by or through your account, whether taken by you or another person accessing or using your account, with or without authorization.
Elements Fitness and Salon will use reasonable efforts to notify you of any claim, action or proceeding subject to the foregoing paragraph once it becomes aware of it, but any failure to provide you with notice shall not limit your indemnification obligations unless you can establish actual prejudice resulted from such failure. Equinox reserves the right, at your expense, to assume the exclusive defense and control of any claim, action or proceeding for which you are required to provide indemnification, and you agree to cooperate with our defense of these claims. You may not settle any claims, actions or proceedings for which you are required to provide indemnification, without Elements Fitness and Salon’s prior written consent.
COPYRIGHT INFRINGEMENT POLICY
Elements Fitness and Salon respects the intellectual property rights of others and expects you to do the same. Pursuant to the Digital Millennium Copyright Act (the “DMCA”),Elements Fitness and Salon reserves the right, but not the obligation, to terminate your license to use, or otherwise disable your account and access to the Digital Properties, in whole or in part, if we determines, in our sole and absolute discretion, that you are involved in infringing activity, including uploading, posting or sharing User Content that is infringing, regardless of whether you are a first-time or repeat infringer, and regardless of whether the material or activity is ultimately determined to be infringing. The foregoing processes does not limit our ability to pursue any other remedies we may have to address any suspected infringement or violation of these Terms.
If you believe that any User Content on the Digital Properties infringes your copyright, or the copyright of anyone on whose behalf you are authorized to act, you may submit a written complaint to our designated copyright agent at email@example.com. Your complaint must include all of the following information:
Identification of the copyrighted work(s) you claim is being infringed.
Identification of the material that you claim is infringing and the URL or other sufficient information for Elements Fitness and Salon to locate that material within the Site.
Your email address, telephone number and mailing address.
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
A statement that the information in your written complaint is accurate and that, under penalty of perjury, you are the copyright owner authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
A physical or electronic signature of the copyright owner or the person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
You may terminate these Terms at any time by ceasing to access and use the Digital Properties and, where applicable, uninstalling the Digital Properties. Please understand, however, if you subsequently decide to resume accessing and using any of the Digital Properties, you will again be bound by the then-current Terms. We may terminate these Terms, or otherwise terminate, suspend or restrict your access to and use of the Digital Properties, in whole or in part, at any time and without prior notice or liability to you, for any reason, including without limitation your failure to comply with any portion of these Terms.
However, even after these Terms have been terminated, the sections titled “Arbitration Agreement and Class Action Waiver,” “Intellectual Property,” “User Content + Feedback,” “Privacy,” “Health Disclaimers,” “General Disclaimers,” “Limitations of Liability,” “Indemnification,” “Governing Law,” “General,” “Gift Card Terms and Conditions,” “Promotional Gift Card Terms and Conditions,” “Personal Training Terms and Conditions” and any other provision which by its nature is intended to survive, will survive that termination.
These Terms, the Additional Terms below, and your access to and/or use of the Digital Properties, will be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles, except to the extent that the Federal Arbitration Act governs the Arbitration Agreement, as provided in these Terms. Except as provided above as to those Disputes you or Elements Fitness and Salon submit to binding arbitration pursuant to the Federal Arbitration Act (Title 9 of the United States Code), all claims, disputes and matters arising hereunder shall be submitted exclusively to the jurisdiction of the federal and state courts of competent jurisdiction located in Los Angeles, California, and you and Elements Fitness and Salon each hereby irrevocably consent to the jurisdiction of such courts and waives all objections thereto.
Elements Fitness and Salon’s corporate offices are located at 22733 Hawthorne Blvd Torrance CA 90505. If you have questions regarding these Terms, or our Digital Properties or our clubs, please contact us by visiting http://www.equinox.com/contactus. Your feedback is always welcome and appreciated.
ADDITIONAL TERMS FOR APPS
The following terms (the “Additional Terms for Apps”) apply to any applications designed for download and use on mobile, tablet, smart watch or other personal devices which Elements Fitness and Salon may make available as part of the Digital Properties (the “Apps”). You acknowledge and agree that the availability of each App is dependent upon the third-party app store from which you download the App (the “App Store”). You acknowledge that these Terms are between you and Equinox, and not with the applicable App Store. Each App Store may have its own terms and conditions to which you must agree before downloading an App from it, and the limited rights Elements Fitness and Salon grants you to use the App are conditioned upon your compliance with any and all terms and conditions of such App Store.
In addition, the following terms and conditions apply to any of our Apps that you download from any Apple App Store (an “iOS App”):
1. Acknowledgement: You and Elements Fitness and Salon each acknowledge that the Terms, including these Additional Terms for Apps, are between you and Equinox, and not with Apple Inc. (“Apple”), and that, subject to any limitations set forth in these Terms, Elements Fitness and Salon , not Apple, is solely responsible for the iOS App and its contents. To the extent the Terms or an Additional Terms set forth herein provide for usage rules applicable to an iOS App that are less restrictive than or otherwise conflict with the Apple App Store Terms of Service, the more restrictive or conflicting provision in such Apple App Store Terms of Service will govern and apply.
2. Scope of License: The license granted to you under the Terms is limited to a non-transferable license to use the iOS App on any iPhone, iPad, Apple Watch or other iOS product or device that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
3. Maintenance and Support: To the extent any maintenance and support services are required under applicable law or expressly contemplated by these Terms, Equinox, not Apple, is solely responsible for such services. You and Elements Fitness and Salon each acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS App.
4. Warranty: Elements Fitness and Salon, not Apple, is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed or limited under the Terms. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price (if any) for the iOS App to you. However, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, to the extent not effectively disclaimed or limited under the Terms, will be Elements Fitness and Salon’s sole responsibility.
5. Product Claims: You and Elements Fitness and Salon each acknowledge that Elements Fitness and Salon, not Apple, is responsible for addressing any claims you or a third party may have relating to the iOS App or your possession and/or use of that iOS App, including, but not limited to: (1) product liability claims; (2) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation. However, you acknowledge and agree that Elements Fitness and Salon ’s responsibility for the foregoing claims is limited and disclaimed, to the maximum extent permitted by applicable law, as further described in these Terms.
6. Intellectual Property Rights: You and Elements Fitness and Salon each acknowledge that, in the event of any third party claim that the iOS App, or your possession and use of the iOS App, infringes that third party’s intellectual property rights, Elements Fitness and Salon , not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim, subject to any disclaimers and limitations set forth in, and your indemnification obligations under, the Terms.
7. Legal Compliance: You represent and warrant that (1) 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 (2) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Third Party Beneficiary: You and Elements Fitness and Salon each acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of the 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 thereof.
additional terms for PERSONAL TRAINING
The following terms and conditions (the “Additional Terms for Personal Training”) apply to all personal training sessions originally purchased at any participating Elements Fitness and Salon location or through any Digital Property (each, a “Session”). By using, accepting and/or retaining a Session, you agree to these Additional Terms for Personal Training. Elements Fitness and Salon reserves the right to change, amend or terminate the Additional Terms for Personal Training and/or its Personal Training offerings, in its sole discretion, at any time with or without notice or liability to you.
24 HOUR CANCELLATION POLICY
An Elements Fitness and Salon member that has made an appointment for a Session may cancel or change the time of the Session provided that a minimum of 24-hours’ prior notice is given. You can make these changes via the Personal Training tab in your account to the Digital Properties, or by contacting your trainer directly. Members will be charged for the full cost of the session on any late cancellations or no-show appointments.
Payment for Sessions is required to be made by the member on or before the date of the Session. If a member has no Session inventory, charges for late cancellations or no show appointments for Sessions will be charged to the member’s credit card on file with Elements Fitness and Salon under the membership agreement. In addition, charges for Sessions which are used by a member but not otherwise paid for will be charged to the member’s credit card on the day the Session is used.
Elements Fitness and Salon may offer discounts on Sessions to members who purchase a package of Sessions. These discounts only apply to the number of Sessions purchased as a group. Any further or additional Sessions will be charged at the regular rate then in effect for individual Sessions.
You may obtain information on your balance of Sessions in the Personal training tab in your account to the Digital Properties or at any Elements Fitness and Salon Club. Sessions may not be redeemed for cash.
All sales are final. Session expire six months from the date of purchase.