Terms of Use
THESE TERMS OF USE CONTAIN A BINDING INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS WITH RESPECT TO ANY DISPUTE BETWEEN YOU AND AlterMe AND REQUIRES THE MANDATORY ARBITRATION OF DISPUTES ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES IN CERTAIN CIRCUMSTANCES, RATHER THAN JURY TRIALS OR CLASS ACTION LAWSUITS. YOU HAVE THE RIGHT TO OPT OUT. VIEW THESE TERMS BELOW.
FIT Wind, LLC, DBA AlterMe® (“AlterMe,” “our,” “we” or “us”) provides advanced fitness technology hardware, software and services that combine DNA, biometrics, computer vision, machine learning and professional human expertise to deliver a uniquely personalized at-home connected fitness and lifestyle experience. This page explains the terms and conditions by which you may visit our websites, AlterMe™ customer success stories, and social media pages and use our hardware (including AlterMe Accessories and other equipment), DNA services, AlterMeSense™ classes and instruction, AlterMePro™ series of self-improvement vid eos, software and online and mobile application technology solutions (collectively, our “Service(s)”).
By accessing or using our Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Use (this “Agreement”), and to the collection and use of your information as set forth in our Privacy Policy (our “Privacy Policy”), whether or not you are a registered user of our Service. We reserve the right to modify this Agreement and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access our Service (collectively, “Users”).
Our Service
This is a contract between you and AlterMe. You must read and agree to this Agreement before using our Service. If you do not agree to this Agreement, you may not use our Service. You may use our Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Except as expressly provided herein, any use or access to our Service by anyone under 18 is strictly prohibited and is a violation of this Agreement. Our Service is not available to any Users who have been suspended, blocked by or removed from our Service.
Your access to and Use of our Service is subject to your compliance with the terms and conditions of this Agreement. You may access and use our Service solely for your personal, non-commercial use. We reserve all rights not expressly granted by this Agreement in and to our Service and our Intellectual Property (defined below). We may suspend or terminate your access to our Service at any time for any reason or no reason.
The terms in Section 19 below governs your membership subscription. IF YOU PURCHASE A SUBSCRIPTION TO THE SERVICE AND YOUR SUBSCRIPTION COST IS NOT COVERED BY YOUR ALTERME CREDITS, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED AT THE END OF THE DISCLOSED BILLING PERIOD AT OUR THEN-CURRENT FEE FOR SUCH SERVICE UNLESS YOU DECIDE TO CANCEL YOUR SUBSCRIPTION OR THE AGREEMENT IS TERMINATED. Additionally, in some states you might have a “cooling off period.” For example, if you are a California resident and purchase a subscription and decide before midnight of the third business day following your purchase that you want to cancel your subscription contract with us and receive a refund for your subscription, you can email a notice of cancellation to cancel@alterme.com with the Re Line: I’ve Changed My Mind. Please include your name, purchase date, and method of payment in the body of the email. Please understand this cooling off period applies to subscriptions only and does not apply to purchased products. Furthermore, termination of the subscription during the cooling off period may impact your ability to complete the Risk-Free Guarantee Return program.
You should print a copy of these Terms or save them digitally for future reference. We reserve the right to determine the form and means of providing notifications to you. By agreeing to our Terms you agree to receive legal notices electronically or through other methods if we so choose. We may revise this Agreement from time to time and the most current version will always be posted on our website. If a revision, in our discretion, is material, we’ll notify you and we may require you to provide consent to the new Agreement in a specified manner before further use of the Service is permitted. By continuing to access or use AlterMe after revisions become effective, you agree to be bound by the revised Agreement. If you don’t agree to the revised Agreement, please stop using AlterMe and cancel your membership subscription as set forth below.
ALTERME TABLE OF CONTENTS
1. Restrictions
2. Permissions
3. Risks and Considerations Regarding AlterMe Swab DNA Services
4. Fitness Related Instruction, Not Medical Advice
5. DNA Testing Terms
6. User Accounts
7. Access and Use
8. AlterMe Equipment
9. Waiver
10. Changes to Our Service
11. User Content and Interactions with Other Users
12. Firmware License
13. Service Location
14. Our Intellectual Property
15. Additional Terms for Mobile Applications
16. Mobile Message Service Terms and Conditions
17. Instructions; Restrictions; Warnings; Disclaimers
18. Transactions
19. Membership, Billing Charges, Payments, Cancellation and Renewal
20. Third-Party Payment Provider
21. Shipping and Returns
22. Change Requests
23. No Professional Advice
24. Privacy
25. Trademark
26. Copyright Notice
27. Copyright Infringement
28. Security
29. Indemnity
30. No Warranty For Service
31. Limited Warranty for AlterMe Device
32. Limitation of Liability
33. Governing Law
34. Dispute Resolution, Arbitration and Class Action/Waiver
35. General
36. Notification Procedures and Changes to the Agreement
37. Entire Agreement/Severability
38. Notice To California Residents
39. AlterMe Promotions and Sweepstakes
40. Apple-Specific Terms
41. Google Play-Specific Terms
42. Android-Specific Terms
43. Feed.fm-Specific Terms
Terms of Use
1. Restrictions
As a condition of your use of the Services, you warrant to AlterMe that you will not use the Services for any purpose that is unlawful or prohibited by this Agreement. You also agree you will not, and you will not assist, permit or enable others to, do any of the following:
a. use the Services in any manner that could damage, disable, overburden, or impair the Services or interfere with any other party’s use and enjoyment of the Services;
b. obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Services;
c. use our Service for any purpose other than as expressly set forth herein;
d. disassemble, reverse engineer, decode or decompile any part of our Service;
e. use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Service;
f. copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Service or any of our Intellectual Property;
g. remove any copyright notices or proprietary legends from our Service;
h. use our Service in a manner that impacts: (i) the stability of our servers; (ii) the operation or performance of our Service or any other User’s use of our Service; or (iii) the behavior of other applications using our Service;
i. use our Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or Users;
j. use our Service in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
k. use our Service for benchmarking or competitive analysis of our Service;
l. add your own headers, forge headers, or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Service;
m. attempt to interfere with, override, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service;
n. transmit viruses, worms, or other software agents through our Service, or use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services contained in the site, unless explicitly permitted by AlterMe;
o. engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of AlterMe’s website;
p. impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use our Service for any invasive or fraudulent purpose;
q. share passwords or authentication credentials for our Service or attempt to deceive the AlterMe technology and/or system to access AlterMe giveaways and discounts that you are not qualified to receive based on personal use of the;
r. bypass the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service or the content therein, including without limitation features that prevent or restrict use or copying of any content;
s. identify us or display any portion of our Service on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights;
t. identify or refer to us or our Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Service under this Agreement, without our express written consent;
u. upload, post, email, or otherwise transmit any material that is derogatory, defamatory, obscene, or offensive, such as slurs, epithets, or anything that might reasonably be construed as harassment or disparagement based on race, color, national origin, sex, sexual orientation, age, disability, religious or political beliefs, or other statutorily protected status;
v. use any information received through the Services to attempt identify other customers, to contact other customers, to “stalk” or otherwise harass another, or for any forensic use.
2. Permissions
Additionally, by using our Services, and providing the required informed consent at purchase, you are granting permissions to AlterMe and/or our affiliates (“AlterMe Affiliates”) (subject to our Privacy Policy) for the following and you expressly agree to, acknowledge, and represent that:
a) AlterMe, its partners, contractors, successors and assignees are permitted to analyze your submitted sample(s) and to disclose the results of analyses to you;
b) As is further explained in our Privacy Policy, AlterMe, its AlterMe Affiliates, partners, contractors, successors and assignees are permitted to receive and analyze your personalized data received through the Services, including among other things your Deoxyribonucleic acid (“DNA”) data from your AlterMe Swab, the summaries resulting from the AlterMe Swab analysis and health/fitness screenings (known as the “AlterType™ Report”), biometric feedback from the connected wrist band or similar device (“AlterMe Signal™”), computer vision analysis and input from the Alter Screen™ 3D imaging software and classes (known as “AlterSense™”), and ongoing feedback from your use of the Services and updates provided thereto, and is permitted to disclose the results of our analyses to you through our program Services. Information received through the Services using Alter Screen™, AlterMe Swab, AlterType™ Reports, AlterMe Signal™, AlterSense™, and other AlterMe Services will collectively be referred as “Personalized User Data”);
c) AlterMe may now or in the future offer different or additional technologies or features in hardware, software, DNA analyses or other Services which may enhance the AlterMe experience or offer new methods to use or interpret your Personalized User Data. Except as is expressly agreed upon herein, you also agree that your initial purchase of the Services does not entitle you to any different or additional hardware, software or technologies or features for collection or interpretation of your Personalized User Data without fee, and that you will have to pay additional fees in order to upgrade hardware or in order to have your AlterMe Swab samples or information recollected, reprocessed, and/or reinterpreted using any future or additional technologies or features;
d) By providing any sample or using the Services, having your information processed, accessing your Personalized User Data, or providing information, you acquire no rights in any research or commercial products that may be developed by AlterMe or its AlterMe Affiliates. You specifically understand that you will not receive compensation for any research or commercial products that include or result from your Personalized User Data or Feedback (as defined below);
e) You will follow the user conduct guidelines, as described below at all times;
f) Once you have returned your AlterMe Swab to us, due to the nature of the testing the sample cannot be returned to you. Any information derived from your AlterMe Swab remains your information, subject to rights we retain as set forth in this Agreement.
3. Risks and Considerations Regarding AlterMe Swab DNA Services
At AlterMe, we use your DNA to isolate and identify genes that are commonly associated with fitness and from those genes, we assign you an AlterMeType™. To do this, we use your DNA sample to find Single Nucleotide Polymorphisms (SNPs)–the most common type of genetic variation among people. Our analysis of your SNPs identifies the versions of individual genes that you carry, which will help us to understand the type, activity and quantity of various proteins that you make. With this unique information, we can use your own genes, daily biometrics and computer vision feedback, to recommend the exercise, wellness, nutrition and lifestyle strategies that your body is most likely to respond to on any given day.
We can’t and don’t claim to change your genetic response to nutrition, stress, and exercise. What we can do is use that information to help you make changes to leverage your genetic strengths. AlterMe identifies what your body needs to perform at its peak and to help you accomplish your goals. With your AlterType™ Report, we can create a daily plan to help you stick with it. Here’s what we look for in your DNA to build your plan:
· Should you do cardio or strength workouts to lose fat and change your body composition?
· Are you intrinsically or extrinsically motivated to exercise?
· What is your injury risk?
· What is your risk for inflammation?
· Are more productive in the morning or evenings?
· How do you tolerate stress?
· How difficult is it for you to lose weight and regain weight?
· How does your body utilize fat, carbs, and protein?
Once you learn your Genetic Information, you cannot un-ring that bell. You should not assume that any information we provide to you will be welcome or positive. As we are strictly focused on SNPs that are most commonly associated with fitness and exercise, we will not use your DNA to determine or collect information related to any disease or condition that you have or may in the future have. Please understand that AlterMe’s Services are not intended to cure, treat, mitigate, prevent or diagnose any condition or disease. If you wish to access DNA or biometric information related to risk factors for any conditions or diseases, please contact your healthcare provider. It is possible, however, that in interpreting your results as they relate to fitness and exercise, you will provide or we will discover information about you that will be used to assist in developing your fitness plan. The following should be understood prior to using our Service.
· DNA is only one part of the AlterMe Services. Other factors, including your biometric feedback, environmental factors, nutrition, sleep, injuries, lifestyle choices and other personal traits are also valuable predictors and may affect the relevance of each AlterType™ Report and how your results may be interpreted.
· Our Services are not intended to tell you anything about your current state of health, whether you are or will suffer from a condition or disease, nor should they be used to make medical decisions, including whether or not you should take a medication, how much of a medication you should take, or to assist you in determining any treatment.
· If you have concerns or questions about what you learn through AlterMe, you should contact your physician or other healthcare provider before making any lifestyle changes. Please note that we do not conduct genetic risk assessments.
4. Fitness Related Instruction, Not Medical Advice
We are not your doctors and, frankly, are not trying to be. Always follow your physician’s instructions over any fitness instructor’s or company’s suggestions. At AlterMe, we want you to achieve your goals and stay safe. AlterMe Services and AlterSense™ offerings are for fitness, health, weight management, wellness, informational, product development and research, and educational use only. We do not provide medical advice.
AlterMe is not for everyone. You should not use the Services if you are under 18 years old, pregnant, have an eating disorder, or if you are instructed not to use our Services by your medical provider; if we find that it’s appropriate (including if based upon any restrictions listed in this section), you may be removed from the Service so that your condition may be managed by a licensed medical professional.
a. Neither our website nor our Services are meant to be an emergency-response or emergency-monitoring service. Any person who is aware of an emergency situation or believes that a person may be at risk of injury or death or who may harm themselves or another person should dial “911” or an appropriate emergency responder. We are under no obligation to monitor or respond to communications made to this website or through our services.
b. Many of the genetic discoveries that are reported in DNA testing have not been clinically validated, and the technology we use, which is the same technology used by the research community, to date has not been widely used for clinical testing.
c. AlterMe does not endorse, warrant or guarantee the effectiveness of any specific course of action, fitness plan, resources, tests, physician or other healthcare provider data, medical devices or other products, procedures, opinions, or other information that may be mentioned on AlterMe’s or our AlterMe Affiliate’s website(s).
d. If we provide any recommendations and/or potential ways to take action, this information is intended for informational and fitness purposes only, and for discussion with your physician or other healthcare provider. The Services are not intended to be used by the customer for any diagnostic purpose and are not a substitute for professional medical advice. Reliance on any information provided by AlterMe or AlterSense™, our employees, others appearing on our website at the invitation of AlterMe, or other visitors to our website is solely at your own risk.
e. The content and other material and services available through the Service may include instructional videos or clips, exercise routines, biofeedback, 3d vision analysis, fitness related genetic information, exercise records and other media. You acknowledge and agree that AlterMe is not a healthcare provider or fitness instructor; that the Service (including any recommendations and any information available through the Service that may be personalized) may not be appropriate for you and does not constitute or replace medical advice; and that AlterMe is not responsible for any results that may (or may not) be obtained from the use of the Service. You acknowledge and agree that it is your sole responsibility to consult with your personal physician regarding any medical condition, impairment or disability that may prevent or limit your ability to use the Service. You further understand and agree that you are solely responsible for abiding by your personal physician’s recommendation as to any such medical restrictions, and for using the Service solely in accordance with your personal physician’s advice.
f. Individuals under 18 years old are not permitted to use or access the Service. The service is intended for use by health adult individuals.
g. We strongly urge you to consult with your primary health care provider (e.g., physician, nurse practitioner, nutritionist) before starting any plan that could result in weight loss, even if weight loss is not your goal.
h. Our Nutrition report and plan is intended to provide examples of food groups and nutritional information that are unique to you based on your genes. However, it is not intended to replace your judgment concerning food allergies or food sensitivities you face. If any recommendation contradicts your known food allergies or food sensitivities, do not follow the Nutrition recommendation without your medical professional’s guidance.
While our genetic partner is licensed in the State of Utah as a clinical laboratory, not all jurisdictions require our Services to be subject to license. Therefore, we are not universally licensed by all state, federal, or international authorities for genetic testing conducted for health and fitness-related purposes. In addition, there are certain jurisdictions in which we do not offer our Services because we do not have the required licenses.
Furthermore, to expand and accelerate the understanding and practical application of genetic knowledge in fitness, we invite all eligible genotyped users to participate in AlterMe Research. When we use the term “Product Development”, it means research performed for the purpose of new product development and new product development activities performed by AlterMe on De-identified Information. These activities may include, among other things, improving our Services and/or offering new products or services to you; performing quality control activities; conducting data analysis that may lead to and/or include commercialization with a third party. Participation in such research is voluntary and based upon an Institutional Review Board-approved consent document.
Some people feel a little anxious about getting genetic results and you may learn information about yourself that you do not anticipate. Although information received by AlterMe from your AlterMe Swab will not contain expanded genetic information that may be available from widely popular services available today, you may still have questions. This is normal. If you feel very anxious, you should speak to your physician or a genetic counselor prior to collecting your sample for testing. Additionally, it is possible that you may discover things about yourself that trouble you and that you may not have the ability to control or change (e.g., you are genetically prone to injury). Our team is available to discuss the common genetic information that we collect and use as part of our Services.
5. DNA Testing Terms
Our laboratory may not be able to process your AlterMe Swab, and the laboratory process may result in errors. The laboratory may not be able to process your AlterMe Swab up to 5% of the time if your Saliva does not contain a sufficient volume of DNA, you do not provide enough Saliva, or the results from processing do not meet our sample standards.
Though we hope it doesn’t happen, sometimes samples fail. If this occurs, the following applies:
· If the initial processing fails for any of above reasons, we will reprocess the same AlterMe Swab at no charge to the user.
· If the second attempt to process the same AlterMe Swab fails, we will offer to send another AlterMe Swab collection kit to the user to collect a second sample at no charge.
· If the second attempt to process the AlterMe Swab is unsuccessful, AlterMe will not send additional sample collection kits and the user will be entitled solely and exclusively to a complete refund of the amount paid to AlterMe, less shipping and handling, provided the user shall not resubmit another sample through a future purchase of the Service.
Even for processing that meets our high standards, a small, unknown fraction of the data generated during the laboratory process may be un-interpretable or incorrect. As this possibility is known in advance, users are not entitled to refunds where these errors occur.
6. User Accounts
Using AlterMe products and Services will require you to create a User Account (including setting up an AlterMe ID and password). You are responsible for maintaining the confidentiality of the information you use for your account, including your personalized password, and for any and all activity that occurs within your account as a result of any failure to secure your information. You agree to notify AlterMe promptly if you suspect or know of any unauthorized use of your account or password, or any other security breach. Under certain circumstances, we may permit different types of User Accounts for different types of Users. If at some point we permit you to open a User Account on behalf of a company, organization, or other entity, then (i) “you” and “your” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to our Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another user’s User Account without permission. We encourage you to use “strong” passwords (those that combine upper and lowercase letters, numbers and symbols) with your User Account. We will not be liable for any loss or damage caused by any unauthorized use of your User Account or for your failure to comply with these obligations.
You may control certain aspects of your User profile and how you interact with our Service by changing the settings in your settings page. By providing us with your email address you consent to AlterMe using the email address you provided to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other promotional messages, such as changes to features of our Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting AlterMe support at support@alterme.com or by clicking the unsubscribe link within each promotional message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers; however opting out will not prevent you from receiving Service-related notices or receiving SMS messages as applicable and described herein.
You acknowledge that you do not own the User Account you use to access our Service. Notwithstanding anything in this Agreement to the contrary, you agree that we have the absolute right to manage, regulate, control, modify and/or eliminate any data stored by us or on our behalf on our (including by our third party hosting providers’) servers as we see fit in our sole discretion, in any general or specific case, and that we will have no liability to you based on our exercise of such right. All data on our servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON OUR SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
7. Access and Use
As part of our Service, we will collect data, content and information, including Personalized User Data, that you provide to us or that is collected by us or via the Service as described in our Privacy Policy. You hereby grant to us, and represent and warrant that you have all rights necessary to grant to us, a perpetual, irrevocable, non-exclusive, sublicensable, transferable and royalty-free right and license to collect, use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and to modify and make derivative works of any and all Personalized User Data in order to provide and maintain our Service for you and, solely in anonymous or aggregate form, to improve our products and services and for our other business purposes (and any and all such derived data is deemed part of our Intellectual Property). In connection with your Personalized User Data, you affirm, represent and warrant that: (a) you have the written consent of each and every identifiable natural person in the your Personalized User Data regarding such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (b) your Personalized User Data and our use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We take no responsibility and assume no liability for any of your Personalized User Data. You shall be solely responsible and indemnify us for your Personalized User Data.
In addition to the above license, if you provide to AlterMe or AlterMe Affiliates any ideas, proposals, suggestions or other materials (“Feedback”), whether related to our Services or otherwise, such Feedback will be deemed a non-confidential, and you agree that such Feedback is gratuitous and without restriction, and does not create any responsibilities or obligations for AlterMe relating to the Feedback. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding Feedback that you may have under any applicable law under any legal theory.
8. AlterMe Equipment
Upon purchase of an AlterMe screen device (“AlterMe Screen™”), the AlterMe Signal™, or other AlterMe Accessories (“Accessories”), you agree that you shall use the Alter Screen™, Alter Signal™ and AlterMe Accessories solely in connection with the Service, and that you will not tamper with, disassemble, attempt to repair, or permit any other person from doing the foregoing with the AlterMe Screen™ or AlterMe Signal™ and that such attempts will void all applicable warranties.
If the AlterMe Screen™, AlterMe Signal™ or AlterMe Accessories are defective or damaged upon receipt, you may request a replacement from AlterMe. A defective AlterMe Screen™, AlterMe Signal™ and AlterMe Accessory will be replaced without charge. If an AlterMe Screen™, AlterMe Signal™ and AlterMe Accessory is lost, stolen, damaged during use, installation, or at any time after receipt by the User, you will be responsible for all loss, repair and/or replacement costs. Any damage must be reported within seven days of delivery, otherwise a replacement cannot be provided.
Although AlterMe provides the Services, you are responsible for obtaining, maintaining and paying for all hardware and all telecommunications and other services needed to use the Services.
The AlterMe Screen™ contains a camera which is used by AlterMe’s computer vision technology when sensing your presence in front of the screen or providing AlterSense™ form coaching and instruction. The camera is required to use workout and coaching features of the Services. When AlterSense™ in engaged, the camera is configured to use real-time 3D computer vision form analysis with movement assessments from the camera to provide on-screen coaching through the AlterSense™ system. The Alter Screen™ and App do not store or transmit videos of you as part of providing AlterSense™. Please consult our Privacy Policy for more information about how AlterMe protects your data.
9. Waiver
You understand and agree that by using the Service, you may be exposed to a variety of hazards and risks, foreseen or unforeseen, including risks that arise as a result of entering a work-out or gym-type space or any other space or environment in which the Service is made available, performing physical activity, and/or using the equipment on which the Service is available. You understand that injuries or damage could occur by natural causes or activities of other persons, including the activities of other persons using such equipment, or other third parties (including third-party fitness instructors and other exercise participants), whether as a result of negligence or otherwise. To the fullest extent permitted by applicable law, you voluntarily assume all risk of loss, damage and injury to person or property that may arise from, or that is related to, your use of the Service, whether such risk is known or unknown to you.
You hereby waive and release AlterMe and AlterMe Affiliates, to the maximum extent permitted by law, from any claim, action, suit or demand arising out of or in connection with the use of the Services (including with respect to any physical injury or death). You acknowledge that neither AlterMe nor the AlterMe Affiliates will incur any obligation to you under any legal theory (including negligence) as a result of your use of the Service. You agree that this release is binding upon you and your heirs, executors, administrators, successors and assigns.
The foregoing release is intended to apply to all claims not known or suspected to exist, with the intent of waiving, if applicable, the effect of California Civil Code Section 1542 (which states as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected his or her settlement with the debtor[]) and other analogous laws or legal principles of any jurisdiction requiring the intent to release future unknown claims.
10. Changes to Our Service
We may, without prior notice, change our Service; stop providing our Service or features of our Service, to you or to Users generally; or create usage limits for our Service. We may permanently or temporarily terminate or suspend your access to our Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
11. User Content and Interactions with Other Users
Either now or at some time in the future, some areas of the Service allow you to post content such as profile information, reviews, comments, questions, videos, photographs, AlterMe™ customer success story(s) and other content or information (collectively “your Content”). We claim no ownership rights over your Content. Your Content remains yours; however, by sharing your Content through the Service, you agree to allow others to view, edit, and/or share your Content in accordance with your settings and this Agreement. We have the right (but not the obligation) in our sole discretion to remove any of your Content that is shared via the Service.
You agree that your Content will not include any content or materials that violate this Agreement or that may (i) create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) create a risk of any other loss or damage to any person or property; (iii) harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) constitute or contribute to a crime or tort; (v) be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) be illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contain any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contain any information or content that you know is not correct and current. You agree that your Content does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. We reserve the right, but we are not obligated, to reject and/or remove any of your Content that we believe, in our sole discretion, violates these provisions. You understand that publishing your Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
In connection with your Content, you affirm, represent and warrant that: (a) you have the written consent of each and every identifiable natural person in the your Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (b) your Content and our use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights; (c) we may exercise the rights to your Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and (d) to the best of your knowledge, all of your Content and other information that you provide to us is truthful and accurate.
We take no responsibility and assume no liability for any of your Content. You shall be solely responsible for your Content and the consequences of posting or publishing it. You understand and agree that you may be exposed to Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of your Content.
Remember, be kind to others. You are solely responsible for your interactions with other AlterMe Users. While we have no obligation to monitor any related websites, chats, discussion boards or any other materials that you or third parties transmit or post on or to the website or related websites, by agreeing to our Services you acknowledge and agree that we have the right to monitor the publicly available websites, discussion boards, chats, and materials you transmit or post; to alter or remove any such materials (including, without limitation, any posting to a chat or discussion board); and to disclose such materials and the circumstances surrounding their transmission to any third party in order to operate the website properly, to protect ourselves, our sponsors, and our other clients and visitors, and to comply with legal obligations or governmental requests.
When you tag your Content and link or refer to AlterMe or to the AlterMe™ customer success stories (“Tagged Content”), we may review such Tagged Content for various reasons. AlterMe may review Tagged Content and select certain Tagged Content for posting on our website and/or social media; we make no guarantee that your Tagged Content will be posted. Notwithstanding the foregoing, you remain fully responsible and liable for your Tagged Content and its compliance with this Agreement, other applicable terms of use and applicable laws. If your Tagged Content is posted to our website or other social media pages, you may request removal of your Tagged Content by marking it as “private” in your Social Media Site account or by emailing support@alterme.com with the reference line “Tagged Content Removal”.
12. Firmware License
Subject to your compliance with this Agreement, AlterMe grants you a limited non-exclusive, non-transferable, non-sublicenseable license to use the software (our “Firmware”) pre-installed on your AlterMe Screen™, AlterMe Signal™, AlterMe Accessories and related hardware (the “AlterMe Devices”), as part of your use of the AlterMe Devices for your own personal, non-commercial purposes and for no other purposes and subject to the obligations above. While you are expressly prohibited from commercially reselling the AlterMe Devices, you may give the AlterMe Devices as a gift, and, for the avoidance of doubt, this Agreement applies to any gift recipient. You are responsible for ensuring that the gift recipient receives these terms. You acknowledge that AlterMe may from time to time issue upgraded versions of AlterMe Firmware, and may automatically electronically upgrade the version of AlterMe Firmware that is on the AlterMe Devices. You consent to such automatic upgrading on the AlterMe Devices, and agree that such upgrades are Firmware under this Agreement. AlterMe reserves all rights in and to AlterMe Firmware not expressly granted to you under this Agreement. All Firmware is protected by U.S. copyright law and international treaties. Any Firmware is licensed to you, not sold. Third-party code incorporated in AlterMe Firmware may be covered by an applicable open source or third-party license licenses authorizing use of such code, and by using the AlterMe Devices you agree to be bound by the terms thereof. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. All Firmware and any related documentation are “commercial items” as that term is defined in 48 CFR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in 48 CFR 12.212.
13. Service Location
Our Service is controlled and operated from facilities in the United States. Those who access or use our Service from other jurisdictions are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use our Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
14. Our Intellectual Property
You acknowledge and agree that our Service and all materials and content displayed or made available on our Service, and all software, algorithms, code, technology and intellectual property underlying and included in or with our Service, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property. Use of our Intellectual Property for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas about our Service, including without limitation about how to improve our Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
15. Additional Terms for Mobile Applications
We may make available software to access our Service via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. We do not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. We grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one User Account on one or more mobile devices owned or leased solely by you, solely for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that we may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof. We or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. We reserve all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of our Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Use and is prohibited except to the extent expressly permitted by these Terms of Use. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and our Service.
16. Mobile Message Service Terms and Conditions
By providing AlterMe with your mobile phone number, you agree that we may use your number to provide you important transactional SMS information and recurring SMS/text message updates about your application process, inquiries, orders, and Services through five digit SMS short codes, even if your mobile number is registered on any state or federal Do Not Call list. These messages, including the number of messages and their individual size will vary per user based on various factors, including the level of assistance required by you to complete the process, the evaluation of your specific goals and fitness needs, and the length of your participation in the AlterMe and/or AlterMeSense™ program. Carriers are not liable for delivered or undelivered messages. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, scheduling messages, appointment reminders, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders, goal check-ins).
We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes. Your participation in this program is completely voluntary.
a. Mobile User Opt Out and Assistance
You may discontinue text service at any time by replying “STOP” to any SMS message you receive from AlterMe. This will unsubscribe from future SMS updates. You may also seek assistance by replying “HELP” to access a member of AlterMe’s team or you can email our support team at support@alterme.com.
b. Mobile User Fees
AlterMe does not charge any of its users additional fees to send or receive text messages. Nevertheless, your mobile carrier may charge fees for these same messages, and your message and data rates with your mobile carrier may apply.
c. U.S. Mobile Carriers Supported
AlterMe supports the following mobile carriers: AT&T, Sprint, T-Mobile®, Verizon Wireless, Metro PCS, Nextel, Virgin Mobile, U.S. Cellular®, ACS Wireless, All West Wireless, Bluegrass, Boost USA, Cambridge Telecom, Cellcom, Cellular South, Centennial, Cincinnati Bell, Cricket Wireless Dobson, Cellular One of East Central Illinois, Appalachian Wireless, Farmer’s Mutual Telephone Company, General Communications, Golden State Cellular, PC Management, Inland Cellular, Illinois Valley Cellular, Nex-Tech Wireless, Nucla-Naturita, nTelos, Revol, Silver Star PCS (God Star), Snake River PCS, South Central, Syringa, Thumb cellular, UBET Wireless, Unicel, United Wireless, and West Central Wireless. The wireless carriers are not liable for delayed or undelivered message. AlterMe will similarly not be liable for any delays in the receipt of any SMS messages connected with our SMS system. Delivery of SMS messages is subject to effective transmission from your wireless service provider/network operator.
d. SMS Privacy
AlterMe respects your privacy. We will only use the information you provide to transmit text messages to you. Nonetheless, we reserve the right at all times to disclose any information as necessary to satisfy any law, regulation or governmental request, to avoid liability, to protect our rights or property. Text messages through your wireless carrier / service provider may not be encrypted or otherwise secure, and therefore you should take care to include only the content you wish to share in the texts to AlterMe’s partners. For more questions about your privacy and AlterMe’s commitment to you, you can view our Privacy Policy.
17. Instructions; Restrictions; Warnings; Disclaimers
Please carefully read any and all instructions and User & Safety Guides that come with the AlterMe Devices, equipment, accessories, and other products (“AlterMe Products”), including instructions that may be available online on our website or by contacting AlterMe support at support@alterme.com. Please review the AlterMe User & Safety Guide before starting with your AlterMe Devices.
You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else if you fail to read and follow the available instructions or use the AlterMe Products for anything other than their intended purposes.
We do not guarantee that the AlterMe Device or its functionality or content is accurate, reliable, always available, or complete. You may encounter content through the AlterMe Device that you find offensive, inaccurate, indecent, or objectionable. AlterMe has no responsibility or liability for such content. We have endeavored to be as accurate as possible in describing and displaying the features of the AlterMe Device; however, there is no warranty or guarantee that the quality, product descriptions, or other content of the Service is accurate, complete, reliable, current, or error-free.
Moreover, the information contained in AlterMe users’ social media accounts, Tagged Content, or any content generated by AlterMe users or third parties that appears on AlterMe’s Services (“Opinions”) represents the views and opinions of the original creators of such content and does not necessarily represent the views, opinions, or Services of AlterMe. The mere appearance of Opinions on our Services, website, or social media sites does not constitute an endorsement by AlterMe or its affiliates of such Opinions.
Opinions are not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read or seen on our website or social media sites. AlterMe hereby disclaims any and all liability to any party for any direct, indirect, implied, punitive, special, incidental or other consequential damages arising directly or indirectly from any use of the Opinions.
Your use of any third party services or products in connection with your use of the AlterMe Device is subject to this Agreement and any third party terms applicable to such third party services or products. When using any third party services or products you are responsible for any information you provide to the third party. Your use of third party services or products may incur usage and/or data charges, you are responsible for any such charges. AlterMe has no responsibility or liability for any third party services or products.
You acknowledge that you are solely responsible for obtaining any access to the Internet through a cellular data service provider or a wireless service provider or other Internet connectivity service provider whose service is compatible with the AlterMe Device.
18. Transactions
If you wish to purchase products or services described or linked to on the website (each such purchase, a “Transaction”), AlterMe or the third-party provider of the product or service will request certain information from you that is applicable to your Transaction, including, without limitation, credit card and other payment and shipping information. You understand that, if any such information is provided to us, then AlterMe shall treat any such information in the manner described in our Privacy Policy. By supplying such information, you grant AlterMe the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. You agree to pay all charges incurred by you or any users of your membership account (as described below) or credit card (or other applicable payment mechanism) at the price(s) in effect when such charges are incurred, including, without limitation, all shipping and handling charges. You shall also be responsible for paying any applicable taxes relating to your purchases. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT MECHANISM USED IN CONNECTION WITH ANY TRANSACTION.
Descriptions or images of, or references to, products or services on the website do not imply AlterMe’s endorsement of such products or services. We reserve the right, without prior notification, to change such descriptions or references, to limit the order quantity on any product or service and/or to refuse service to you. Verification of information applicable to a purchase may be required prior to AlterMe’s acceptance of any order. Price and availability of any product or service are subject to change without notice. We are not responsible for errors in the prices or descriptions of any product or service. Refunds and exchanges shall be subject to AlterMe’s and/or any applicable third party’s refund and exchange policies in effect at the time of the applicable Transaction. Current rates for any product or service available through the website may be obtained by completing a support request.
Transactions with AlterMe will result in electronic communications to you at the e-mail address that you provide regarding your order, purchase amount, and shipment notification. By making a purchase, you consent to these communications from us. These communications are not encrypted but any subsequent communications through the customer portal may be encrypted.
Transactions may be subject to restrictions on discounts, promotions, contests, or regularly priced items. Such restrictions may include discounts when used with certain method of payments, financing, or payment plans such as AlterMePay, timing of discount period, or pre-determined time or dates required in order to fulfill your obligations as a customer. We reserve the right, without prior notification, to change such descriptions, restrictions, or references to limit the order quantity upon any product or service.
19. Membership, Billing Charges, Payments, Cancellation and Renewal
a. Membership
To access the full range of AlterMe Services, you must be a Member, which means you have an active subscription for an AlterMe membership (“AlterMe Membership”). Without an AlterMe Membership, certain features, content, functionalities, and other aspects of the Services may be unavailable. You will become a Member upon (1) acceptance of the Individual Plan or Household Plan membership rules and terms and (2) either the (a) payment of your AlterMe Membership Fee or (b) application of AlterMe Credits to your AlterMe Membership Fee balance as described below in AlterMe Credits. You will remain a Member so long as your AlterMe Membership is up to date. Your AlterMe Membership cannot be transferred to another person.
If your AlterMe Membership begins with a free trial, your first payment will be charged to your chosen payment method immediately following the end of the free trial, unless canceled in accordance with the instructions for cancellation below. Notwithstanding the terms below, you can cancel your subscription without being charged at any time before the end of your free trial. We provide notice of the terms of the free trial at the time you register and you will not receive a separate notice that your free trial is about to end or has ended, or that your paid subscription has begun, unless required by law in particular instances or jurisdictions.
b. Billing Policies For Services and Membership
AlterMe Membership subscriptions automatically renew. By making a purchase through AlterMe, you hereby authorize AlterMe and its service providers to bill your credit card for the amounts and at the intervals described at the time of purchase (or at approximately those intervals, to accommodate for holidays and other irregularities) until you terminate your AlterMe Membership, until the end of the subscription period, or subject to applicable laws, indefinitely if you decide to purchase an open-ended AlterMe Membership. In cases where your credit card expires, is canceled, is over the limit, or is otherwise declined for any reason, we will not continue to offer Services of the AlterMe Membership until your account and payment information is renewed. We may, but are not obligated to, contact you to notify you of the issue through reasonable methods identified in this Agreement or our Privacy Policy, including SMS short code messaging, electronic mail, telephone, mail, etc.
Through your purchase and by using the Service, you agree to our pricing and payment terms as we may update them from time to time. Unless otherwise specified at the time of purchase you must pay for and/or finance your AlterMe Devices or other AlterMe Products and Services when you place your order. You acknowledge that the amount billed may vary due to changes in applicable fees, promotional offers and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
Except as expressly set forth in this Agreement you will be required to pay AlterMe the current per month charge plus applicable sales tax, beginning on the first day that your Service is activated. You agree to make payments, and we will automatically charge the payment method associated with your User Account (“Payment Method”), as described below, for so long as the Service remains active.
You may purchase an AlterMe Membership directly from AlterMe by completing the sign-up process and (1) paying a subscription fee plus applicable taxes (calculated based on information provided by you during set up) (hereinafter, “Paid Subscription”) in advance on a monthly basis or some other recurring interval disclosed to you prior to your AlterMe Membership purchase or (2) applying AlterMe Credits to your AlterMe Membership Fee. At the time of your purchase, AlterMe may require an initial membership commitment. If such a commitment is required, you will receive notice of it at the time of purchase. For those customers, an initial AlterMe Membership period of one year (“Initial Term”) will be required with each purchase of an AlterMe Device, except devices in multi-residence households as described below in the Family Pricing. After the Initial Term (for customers with the first-year commitment) or on a recurring monthly basis (for those without the first year commitment), each AlterMe Membership will renew automatically on a monthly basis, unless you cancel your AlterMe Membership. Any customer may also renew your AlterMe Membership for additional one-year periods (“Extended Terms”) and be eligible for additional discounts and promotions. To avoid additional months or Extended Terms, you must cancel the Service at least three days before:
the end of an Initial Term;
the end of an Extended Term; or
(for those customers paying subscriptions month to month without any term obligations) the end of a monthly Term.
The periods referred to as Initial Terms, Extended Terms, and monthly Terms are collectively described as Membership Term(s). You are not entitled to a refund for any partial Membership Term in which you cancel.
c. Price and tax changes
The AlterMe Membership fee is found at https://www.alterme.com/pricing plus any applicable taxes, and is non-refundable. AlterMe may from time to time make changes to membership fees (“Membership Price Change(s)”) and will communicate any Membership Price Changes to you in advance. Membership Price Changes will not affect your Membership Term price until the expiration of the Membership Term. Membership Price Changes will take effect at the start of the next Membership Term period following the date of the Membership Price Change and, as permitted by applicable law, by continuing to use the AlterMe Services after the Membership Price Change takes effect, you will have accepted the new price. If you do not agree to a Membership Price Change, you can reject the change by unsubscribing from the applicable AlterMe Membership prior to the Membership Price Change going into effect.
Tax rates are based on the rates applicable at the time of your monthly charge. These amounts can change over time with local tax requirements in your country, state, territory, county, or city. Any change in tax rate will be automatically applied based on the account information you provide.
For purposes of this section, “Tax” means any state and local sales or use tax, value-added tax, levies, duties, or and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. Prices displayed exclude taxes. If any Service, or payments for any Service, under the Agreement are subject to any Sales Tax in any jurisdiction and we have not charged the applicable Sales Tax, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority. You agree to make all payments of fees to us free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to us will be your sole responsibility. Upon subscription renewal, tax is subject to change in accordance with the prevailing tax rates, determined by the subscriber’s provided billing or home address.
d. AlterMe Credits instead of Monthly Membership Fees
At AlterMe, we believe in rewarding Users for using the Services, completing recommended classes, and engaging in recommended daily habits. With that, from time to time, when Users meet certain achievements (as defined below on our website at https://www.alterme.com/pricing), AlterMe may add credits to and/or waive your AlterMe Membership fees which could eliminate your Membership Fee obligation for the applicable period (“AlterMe Credits”). Yes, that’s correct, if you complete your Plan in the AlterMe App by doing the Work and Daily Habits, even though you have agreed to pay a monthly Membership Fee, AlterMe will reward you by waiving those charges for the applicable billing cycle. Your AlterMe Credits can even carry over from month to month when you exceed your Plan or through other promotions and programs. By accepting these Terms, you acknowledge that these AlterMe Credits will be applied at the time of payment in lieu of charging your credit card and your balance due will be zeroed out. You also agree that, although you are paying less than the agreed upon AlterMe Membership Fee for the month, AlterMe Credits do not constitute Membership Price Changes requiring notice to you. At no time will the failure to earn AlterMe Credits result in an increase to your agreed upon AlterMe Membership Fee. Further, while AlterMe Credits can carry over month to month they will not recur automatically and may expire after one year of issuance. You may continue to earn or receive AlterMe Credits in following months which will be applied as applicable. AlterMe Credits cannot be combined with other offers and will not result in Users receiving any right to compensation from AlterMe should AlterMe Credits exceed the AlterMe Membership Fee. Apart from applying AlterMe Credits in lieu of payment obligations for the AlterMe Membership Fee, AlterMe Credits have no cash value and cannot be traded with other Users, except as permitted by our Household Plan policy. AlterMe Membership Fees will be covered when the User completes their AlterMe plan each week and collects and has available four (4) or more AlterMe Credits during any given month. Partial credits cannot be used to pay AlterMe Membership Fees.
e. Renewal and Cancellation
The Service will remain in effect from activation until it is canceled (by us or by you), as described below. Your payment to AlterMe will automatically renew at the end of the applicable Membership Term, unless you cancel before the end of the then-current subscription period. Contact our Customer Support team here for instructions on how to cancel.
Unless otherwise required by applicable law, the cancellation will take effect the day after the last day of the current subscription period, and you will no longer be able to access your User Account for Services. Except as expressly identified in AlterMe Credits or elsewhere in these Terms, we do not provide refunds or credits for any partial subscription periods.
At the expiration of the AlterMe Membership, your subscription will automatically renew at the frequency referenced on your Membership page (or if not designated, then monthly) and you will be charged applicable subscription until you cancel your subscription or we terminate it. Prior to the renewal, you will receive reminders about the renewal and the renewal policies. Whether you accepted auto-renewal or continuous service online, over the phone, or in another manner consistent with AlterMe practices, you will be allowed to terminate the auto-renewal or subscription service online, as well as any other method convenient to you. You may cancel your subscription at any time by completing a support request here or using the manage subscription feature on your account settings.
f. Payment Method/Taxes
You must provide AlterMe with a current, valid, accepted Payment Method. You hereby authorize AlterMe (through our third-party payment providers) to bill the fees to your Payment Method, along with any applicable taxes or additional fees due during the billing period. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Service must be accurate, complete, and current. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
g. Membership Terms of Use
Each AlterMe Membership is associated only with a single user within a household, and cannot be used to enable any benefits of the AlterMe Membership on any AlterMe Device(s) outside of your household. Household Members will receive unique member identification. Except as otherwise provided herein, if Users maintain multiple residences for personal use, or access publicly available AlterMe Device(s) in public or private fitness facilities, such use is considered within a single household for purposes of the AlterMe Membership. However, to avoid fraud or misuse, AlterMe Credits may only be earned on the registered devices associated with your User Account. Moreover, you understand and agree that your use of any publicly available AlterMe Device is done so at your own risk. Multiple Users may use a single AlterMe Screen™, however, as the AlterMe Services are customized for each unique User, additional AlterMe Memberships will be required in order to access all Services and content. A member may permit household members and personal guests of the member (“AlterMe Guests”) to use the AlterMe Screen™, however, without an active AlterMe Individual Plan or Household Plan Membership, those AlterMe Guests will not receive customized workouts and will only access the Member’s workout plan. Household Plans are available to allow multiple users with customized plans within a single household. Each AlterMe Guest or Household Plan Member must accept the terms and conditions of this Agreement prior to using the Service, and the member will be responsible for all acts and omissions of each Additional User under the membership.
AlterMe reserves the right, in its sole and absolute discretion, to exclude any individual(s) from the AlterMe Membership or to terminate any membership, for any reason, including abuse of the AlterMe Membership program, failure to comply with this Agreement, or fraud, misrepresentation or other conduct detrimental to the interests of AlterMe. Any such exclusion or termination may affect eligibility for further participation in the Membership Program.
If your AlterMe Membership expires or is cancelled or terminated, you may no longer have access to any data, information or other content (including historical data, usage records, custom workouts, etc.) associated with your AlterMe Membership.
Some of the AlterMe Devices involve the processing of data pursuant to your consent. While you may withdraw your consent to processing such data in relation to one or all your AlterMe Devices at any time, if you do so it will impact the Service and we will no longer be able to provide the complete Service. If you choose to withdraw your consent you will still be responsible for the AlterMe Membership fees until you cancel your subscription as described above in Section “(e)”.
h. California Users: Rescinding Your Contract with Us.
If you are a resident of California, provided that no more than three (3) business days have elapsed since you signed up for your subscription, you may also rescind your agreement with us and seek a refund. Specifically, if you are a California resident, you may cancel your agreement without penalty or obligation, at any time prior to midnight of the third business day following the date of this contract, excluding Sundays and holidays. To cancel this agreement and receive a refund, email or deliver a signed and dated notice which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice must be emailed to cancel@alterme.com with the Re Line: I’ve Changed My Mind. Please include your name, purchase date, and method of payment in the body of the email. If you prefer to mail a cancellation, send the notice to AlterMe, Attn: Legal Department, 2825 Cottonwood Parkway, Suite 500, Salt Lake City, UT 84121. Note, if you cancel your agreement pursuant to the instructions in this section, we may terminate your access to the Service upon receipt of your cancellation notice.
20. Third-Party Payment Provider
In addition to in-house payment options, we may use Shopify as well as AlterMePay + Lending USA as our third-party service providers for payment services. By using our Service you agree to be bound by Shopify and Lending USA’s Services Agreement available at https://www.shopify.com/legal/terms and https://lendingusa.com/terms-of-use/.
21. Shipping and Returns
All products ordered will be delivered to the shipping address provided by you, so long as the address is complete and complies with the shipping restrictions contained herein. Shipping dates are estimates, not guarantees and are subject to change. Shipping outside of the Continental United States or to a PO Box/APO may be subject to an additional charge and must be preapproved before placing order. AlterMe is not liable under any circumstances, for any losses, damages or penalties due to any delays in shipments or deliveries. You may be notified via email or text if there is an issue that will delay your delivery beyond the expected delivery date. We cannot guarantee delivery on a specific day or time. Your billing and shipping addresses may be different. Any changes to the shipping address, order cancelations or failure to take delivery from our carrier, including missed delivery attempts or order refusals may be subject to an additional fee being charged to you as described below.
All non-UPS shipments require a customer signature upon delivery. The shipping company will call before attempting to deliver your device. A total of three attempts will be made to contact you. After three attempts have been made the shipping company will make arrangements to return your device to our warehouse. Return shipping and a 10% restocking fee may apply and you may also be responsible for reshipping the device, if requested.
Your use of an AlterMe Device is subject to this AlterMe Shipping & Returns Policy, as updated from time to time applicable to your AlterMe Device(s). Except as expressly provided herein or as otherwise required by law, all sales of products and services are final. With the exception of the Guarantee (as described below), AlterMe does not offer refunds or credits for purchases and does not permit returns of AlterMe Devices. AlterMe will repair or replace damaged or faulty items within the warranty period or as otherwise required by law.
AlterMe’s 30 day Risk Free Guarantee.
At AlterMe, we want you to be as excited about your journey as we are. As an AlterMe user, you know we reward you for your effort. Our refund and return policy has the same spirit built into it. This means, if after 30 days of taking delivery of the AlterMe System (ownership) and using AlterMe you don’t feel better, sleep better, feel stronger, or have more energy, we’ll give you a full refund minus our restocking fee (see more details below). To qualify for the 30 day Risk-Free Guarantee, you need to dive into the AlterMe System and actually put the work in. Specifically, during the first month of ownership, you must:
Complete 14 full workouts or work-ins on 14 separate days as recommended by the AlterMe System while wearing your AlterMe Signal and while logged into the AlterMe App; and
Wear your AlterMe Ring or Signal device during the first 30 days and log at least 14 nights of sleep tracking through your AlterMe Ring or Signal wearable.
If after using the AlterMe for 14 days and using the device for 14 nights during the first 30 days of ownership you decide that the AlterMe is not right for you, call our Member Success department at 866-258-3763 that you want to return your AlterMe and we will start to process your return. Although you can notify us before your first 30 days of ownership lapses, for those customers who don’t complete the 14 days / 14 nights until the 30th day, we will provide you with a three-day grace period (“Grace Period”) to notify us. To be clear, our 30-day Risk Free Guarantee begins on the day you take delivery of your system and ends 30 calendar days thereafter (“Return Period”).
To be eligible for a refund, you must: (1) use the AlterMe system as outlined in the Risk Free Guarantee above, (2) retain your proof of purchase and original packaging of your Screen and accessory kit, (3) notify AlterMe during the Return Period or Grace Period by calling 866-258-3763 that you wish to initiate a refund, (4) share photos of the AlterMe equipment, first showing the device outside of the packaging, and the second demonstrating the device was properly packaged (4) return the requested materials within 7 calendar days of your receipt of the prepaid shipping label(s).
Notifications received after the Return Period expires will not be honored unless a longer period is required by applicable law or offered in writing by AlterMe at the time of sale. Once we receive a notification from you, an AlterMe representative will reach out to you to discuss your specific situation and to facilitate the shipping label and return of your requested devices. AlterMe will provide you with a pre-paid shipping label to return your AlterMe screen and accessories. You must use the original packaging to return items to AlterMe to limit the possibility of damage and to ensure the AlterMe device remains in good condition in transit. AlterMe cannot schedule a pick-up of your return or guarantee a specific date or time for the pick-up of your items by the carrier. If you no longer have your original packaging, you may purchase new packaging from AlterMe which can be shipped to you at cost. Replacement package shipping costs may vary. Your pre-paid shipping label will be valid for 7 days from the day it is emailed to you and if the items are not marked as received by our carrier within those 7 days the refund/return window will be closed. Please do not send anything to AlterMe in any way other than through this pre-paid shipping label. Upon receipt of the items AlterMe will inspect the retuned item(s) for damage or missing parts. If the item(s) are returned in damaged condition or with parts missing, you may be charged an additional fee which will be deducted from your purchase price refund prior to refund and/or invoiced to your card on file. After the inspection is complete AlterMe will process your refund as soon as possible and depending on payment method, your refund should be posted shortly thereafter. If you financed your purchase, AlterMe or its finance partner will issue a refund of the principal amount of your original purchase price only, minus any damage fee, which will not cover any interest or fees paid to our finance partner.
Processing/Restocking/Shipping Fees: You may request to return your AlterMe order any time prior to processing and shipment for no additional charge. If your AlterMe order is already in transit and/or scheduled for an in-home delivery by AlterMe or our fulfillment partner, and you fail to accept delivery, refuse delivery, cancel, or return your order, you will be subject to a $99 restocking fee for AlterMe and $199 for AlterMe Pro. If you miss your scheduled delivery more than 3 days and AlterMe is returned to our warehouse, you may be charged a return fee of $199.
You hereby acknowledge that you have reviewed and understand the Shipping & Returns Policy applicable to your AlterMe Device(s), and that you agree to all of the content therein. All shipping transactions made through third party carriers are done so at your own risk. As a result, risk of loss and title for AlterMe Devices pass to you upon delivery of the AlterMe Devices to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments.
If these guidelines are not met, AlterMe reserves the right to deny your refund and return or to invoice you for the full purchase price.
22. Change Requests
If an order change request is made any time after an assignment with the fulfillment partner, the customer may be subject to a nonrefundable change fee and an additional delivery delay of two or more weeks. An order change for an AlterMe Screen™ order is subject to a $250 change fee. Change requests are not possible after a delivery date has been scheduled with our fulfillment partner.
23. No Professional Advice
If the Service provides professional information (for example, medical), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
By using our Services, you affirm that you are not aware of any medical reasons whatsoever why you should not use the Services. Before using your AlterMe Device or AlterMe Products, as with any fitness plan, you should consult a physician who can assess an appropriate exercise regimen based on your overall health and any particular health conditions that may influence your safe use of the AlterMe Services. Certain exercise programs, classes, or equipment may not be appropriate for all people. Incorrect or excessive training can result in serious injury or death. You agree to heed any warnings or similar notices provided by AlterMeSense™ coaches.
Our coaches will be able to provide personal training-related recommendations via AlterMeSense™ classes on the AlterMe Screen™, the AlterMePro™ series of self-improvement content, newsletters, emails, or social media channels. However, they are not physicians. Consult your doctor before starting any fitness program. You are highly encouraged to carefully review any information you encounter with your professional healthcare provider.
24. Privacy
We care about the privacy of our Users. Please carefully read our Privacy Policy to understand how we collect, use and share your personal information. Please note that some of the personal information we process, including any data concerning your health, is considered sensitive personal information, and depending upon the applicable law is processed only if you have given your consent for processing.
25. Trademark
AlterMe names and logos and all related product and service names, design marks, and slogans including the AlterMe Fitness System, AlterMe, AlterMePro, AlterMeType, AlterMeSense, AlterMeme, AlterMepay, AlterMe Screen, AlterMe Signal, and AlterMe Swab are the trademarks or service marks of FIT Wind, LLC. All rights are reserved. You are not authorized to use any AlterMe name or mark in any advertisement, publicity or in any other commercial manner without prior written consent of FIT Wind LLC. All other trademarks appearing on the website are the property of their respective owners. Nothing contained in the Terms of Use or Services should be construed as granting any right to use any trade names, service marks, trademarks or logos without the express written consent of the owner.
26. Copyright Notice
AlterMe’s website is owned and operated by AlterMe. The entire contents and design of our site and our Services are protected by U.S. and international copyright law. All rights regarding the website and materials contained on the website and in our Services are either owned by AlterMe, are licensed to it, or are used with permission. AlterMe and its licensors retain and reserve all proprietary rights to the contents of this website.
You may not copy, republish, upload, post, display, transmit, or frame any of these materials without prior written consent from AlterMe. You may link to, view, download, use, display and print a single copy of the materials found on this website only for personal, noncommercial, and informational purposes as long as: (1) you do not alter or modify the materials in any way; (2) you include all applicable copyright, trademark and other notices and disclaimers; and (3) you do not use the materials in a way that suggests an association with AlterMe or our partners. All such copies must include, at a minimum, the following copyright notice: “Copyright © [2022-2024] AlterMe. All rights reserved.” Any other use of the website or the information contained here is strictly prohibited. AlterMe may terminate the above license at any time for any reason. If you breach any of these terms your license terminates immediately and automatically and without notice. Upon the termination of this license you must stop using this site, including all content, and return or destroy all copies, including electronic copies, of the content in your possession or control.
27. Copyright Infringement
The Digital Millennium Copyright Act (the “DMCA”) provides remedies for copyright holders who believe in good faith that material appearing on the Internet infringes their rights under copyright law. If you believe in good faith that content or material on this website infringes a valid copyright owned by you, you (or your agent) may send AlterMe a notice requesting that the material be removed, or access to it blocked. This request should be sent to us by completing a support request.
The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or the subject of infringing activity; (d) the name, address, telephone number, and email address of the complaining party; (e) a statement that the complaining party has 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 (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. Notices and counter-notices with respect to the website should be sent to the address above.
28. Security
Before using your AlterMe Devices, you must carefully read any and all instructions that were provided with the device or that we direct you to, including instructions that may be available (1) online, (2) on our website, or (3) by contacting AlterMe support at support@alterme.com. You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for harm caused by our system as described in greater detail above. We care about the integrity and security of your personal information. We use a variety of safeguards in our sole discretion to preserve the integrity and security of your personal information through physical, managerial, and technical efforts. We cannot, however, guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Disclaimer of Third-Party Links and Products THE SERVICE MAY CONTAIN THIRD-PARTY MATERIALS OR LINKS TO THIRD-PARTY MATERIALS THAT ARE NOT OWNED OR CONTROLLED BY ALTERME. ALTERME DOES NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY SUCH THIRD-PARTY SITES, INFORMATION, MATERIALS, PRODUCTS, OR SERVICES. IF YOU ACCESS A THIRD-PARTY WEBSITE OR SERVICE FROM THE SERVICE OR SHARE YOUR USER CONTENT ON OR THROUGH ANY THIRD-PARTY WEBSITE OR SERVICE, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THIS AGREEMENT AND ALTERME’S PRIVACY POLICY DO NOT APPLY TO YOUR USE OF SUCH SITES. YOU EXPRESSLY RELIEVE ALTERME FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE, SERVICE, OR CONTENT, INCLUDING WITHOUT LIMITATION THIRD-PARTY MATERIALS AND USER CONTENT SUBMITTED BY OTHER USERS. ADDITIONALLY, YOUR DEALINGS WITH OR PARTICIPATION IN PROMOTIONS OF ADVERTISERS FOUND ON THE SERVICE, INCLUDING PAYMENT AND DELIVERY OF GOODS, AND ANY OTHER TERMS (SUCH AS WARRANTIES) ARE SOLELY BETWEEN YOU AND SUCH ADVERTISERS. YOU AGREE THAT ALTERME SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH SUCH ADVERTISERS.
29. Indemnity
You agree to defend, indemnify and hold harmless AlterMe and our subsidiaries, AlterMe Affiliates, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to our Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) Personalized User Data including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of our Service with your unique username, password or other appropriate security code.
30. No Warranty For Service
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ALTERME OR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, ALTERME, OUR SUBSIDIARIES, OUR ALTERME AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, PERMANENT, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF OUR SERVICE.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
31. Limited Warranty for AlterMe Device
The purchase of an AlterMe Device it is subject to the Limited Warranty Policy, as updated from time to time, applicable to your AlterMe Device(s). The Limited Warranty Policy for AlterMe Devices is available here. You hereby acknowledge that you have reviewed and understand the Limited Warranty Policy applicable to any AlterMe Device(s) you own, and that you agree to all of the content therein.
32. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ALTERME, OR OUR ALTERME AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (VII) YOUR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL ALTERME, OR OUR ALTERME AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO ALTERME HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
33. Governing Law
You agree that: (i) our Service shall be deemed solely based in Utah; and (ii) our Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Utah. Except as expressly provide herein, this Agreement shall be governed by the internal substantive laws of the State of Utah, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Orange County, California or Salt Lake County, Utah for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Orange County, California or Salt Lake County, Utah is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
34. Dispute Resolution, Arbitration and Class Action/Waiver
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU FURTHER UNDERSTAND THAT THE RIGHTS TO DISCOVERY AND APPEALS MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
a. Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Most concerns may be quickly resolved in this manner. For any dispute with AlterMe, you agree to first contact us at support@alterme.com and attempt to resolve the dispute with us informally. Your notice of dispute must be individual to you and must include, as applicable, your name, your email address, and your residential address. The notice of dispute also must explain the facts of the dispute as you understand them and tell us what you want us to do to resolve the issue. The parties shall use their best efforts to settle any dispute directly through consultation and good faith negotiations, and you agree that a notice of dispute containing all of the information required above, followed by at least 60 days of good faith negotiation, are preconditions to either party initiating a lawsuit or arbitration. A notice of dispute will not be valid unless it contains all of the information required by this paragraph. If you commence an arbitration without having previously provided a valid and compliant notice of dispute, you and we agree that the applicable arbitration provider (or the arbitrator, if one has been appointed) must suspend the arbitration pending compliance with this paragraph. You and we authorize the arbitration provider or the arbitrator to decide summarily whether the party that commenced an arbitration complied with these notice requirements, relying solely on this Agreement and the notice of dispute provided (if any). All statutes of limitation shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
b. Agreement to Binding Arbitration. In the unlikely event that we do not reach an agreed upon solution within sixty (60) days from the date the informal dispute resolution is pursued pursuant to the Initial Dispute Resolution section above, then unless an Exception applies as stated below, we each agree to resolve any claim, dispute, or controversy arising out of or in connection with or relating to the Services, the Privacy Policy, or this Agreement, including but not limited to its formation, performance, breach or alleged breach thereof, and regardless of whether the dispute is based in contract, statute, regulation, ordinance, or tort (collectively, “Claims”), by binding arbitration.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Except in the event of a Mass Arbitration (as defined below), the parties agree that all Claims shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures as modified by this Agreement, but excluding any rules or procedures that permit arbitration on a class-wide basis (collectively, the “JAMS Rules”). The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. The seat of the arbitration will be decided pursuant to the JAMS Rules. You or AlterMe may elect to appear at the arbitration in person or, if you and we both agree, to conduct it remotely online via appropriate videoconferencing technology, in lieu of appearing live.
Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Rules. Except as expressly stated to the contrary below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all arbitrability issues, as well as all issues or Claims arising out of or relating to the interpretation, applicability, or enforceability of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. In any arbitration before JAMS, the parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous and not in bad faith, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was frivolous or brought in bad faith, in which case the arbitrator may award us our attorney’s fees, expert witness fees, arbitration fees and/or costs. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
c. Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION, COLLECTIVE ACTION OR CLASS ARBITRATION, OR AS A PRIVATE ATTORNEY GENERAL. To the extent applicable law does not permit waiver of private attorney general claims, but permits them to be arbitrated, then such claims shall be resolved in arbitration. You and we each further agree to waive our respective right to file a class action or seek relief on a class basis. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of this Agreement to Binding Arbitration cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies.
d. Exceptions to Arbitration. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Excluded claims are subject to the jurisdiction provisions in Section 32(h) below. Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.
e. Exception—Mass Arbitration Before NAM. Notwithstanding the parties’ decision to have arbitrations administered by JAMS, in the event 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that the demands will constitute a “Mass Arbitration.” If a Mass Arbitration is commenced, you and we agree that it shall not be governed by the JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by National Arbitration & Mediation (“NAM”), a nationally recognized arbitration provider, and governed by the NAM rules in effect when the Mass Arbitration is filed as modified by this Agreement, including the NAM Mass Filing Supplemental Dispute Resolution Rules, but excluding any rules that permit arbitration on a class-wide basis (collectively, the “NAM Rules”). The NAM Rules are available at www.namadr.com or by calling 1-800-358-2550. Notwithstanding anything to the contrary above, you and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from a court of competent jurisdiction compelling compliance with this agreement and compelling administration of the Mass Arbitration before NAM. Pending resolution of any such requests to a court, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. You and we acknowledge that either party’s failure to comply with this paragraph would irreparably harm the other, and you and we agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this paragraph are resolved by the court.
f. 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions above by sending written notice of your decision to opt-out by emailing us at arbitrationoptout@alterme.com. The notice must be sent within thirty (30) days of your first use of the Service following the effective date of this Agreement; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
g. Term for Cause of Action. To the fullest extent permitted by law, you agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred. You further agree that the limitations of damages as set forth herein are fundamental elements of the basis of the bargain between you and AlterMe.
h. Exclusive Venue for Litigation Not Subject to Arbitration. To the extent that the arbitration provisions set forth above do not apply or if you have opted out of arbitration, you and we agree to submit to the personal jurisdiction of the state and federal courts located in Orange County, California and Salt Lake County, Utah, and you and we agree that any litigation shall be filed exclusively in state or federal courts located in Orange County, California or Salt Lake County, Utah (except for small claims court actions which may be brought in the county where you reside). In the event of litigation not subject to this Agreement to Binding Arbitration, you and we agree to waive, to the maximum extent permitted by law, any right to bring a class action or any right to a jury trial, except where a class action or jury trial waiver is not permissible under applicable law.
35. General
We reserve the right to assign or transfer our rights and obligations under this Agreement. If AlterMe or any AlterMe Affiliate is acquired or transferred to another entity (in whole or part, and including in connection with bankruptcy or similar proceedings), you agree that AlterMe and AlterMe Affiliates may share your Personalized User Data and/or Feedback with that entity. These Terms will continue to apply to the Services until you receive notification otherwise. You may not assign or transfer any of your rights and obligations under these Terms without AlterMe’s written consent. There are no third-party beneficiaries to these Terms. Any attempted transfer or assignment in violation hereof shall be null and void.
36. Notification Procedures and Changes to the Agreement
We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain notifications as required under applicable laws or as described in this Agreement or our Privacy Policy. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of our Service after any such change constitutes your acceptance of the new Terms of Use. If you do not agree to any part of this Agreement or any future Terms of Use, do not use or access (or continue to access) our Service.
37. Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with our Service, shall constitute the entire agreement between you and us concerning our Service. None of our employees or representatives are authorized to make any modification or addition to this Agreement. Any statements or comments made between you and any of our employees or representatives are expressly excluded from this Agreement and will not apply to you or us or your use of our Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No Waiver: No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Contact: Please contact us at support@alterme.com with any questions regarding this Agreement.
38. Notice To California Residents
For California Residents, the provider of our Service is FIT Wind, LLC. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
39. AlterMe Promotions and Sweepstakes
Any sweepstakes, contests, raffles, surveys, games or similar promotions (collectively, “Promotions”) made available through the Service may be governed by rules that are separate from this Agreement. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with this Agreement, the Promotion rules will govern.
40. Apple-Specific Terms
In addition to your agreement with the AlterMe terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Additionally, any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”), by agreeing to these Terms, you acknowledge and agree that this Agreement is solely between you and AlterMe, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to AlterMe in accordance with this Agreement. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, AlterMe’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, AlterMe, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
41. Google Play-Specific Terms
The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and AlterMe only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) AlterMe, and not Google, is solely responsible for our Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Google-Sourced Software.
42. Android-Specific Terms
In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of the Services through any version of an application compatible with the Android mobile operating system (the “Android App”) of Google, Inc. (“Google”). You acknowledge that these Terms are between you and AlterMe only, and not with Google. Your use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where you obtained the Android App. AlterMe, and not Google, is solely responsible for our Android App and the Services and content available thereon. Google has no obligation or liability to you with respect to the Android App or these Terms. You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to the Android App.
43. Feed.fm-Specific Terms
There is no affiliation, connection, association or endorsement of the products, goods or services displayed on this page by the copyright owners, featured recording artists and authors of the sound recordings (and the musical works embodied therein) transmitted through the Feed.fm player. For questions regarding the music services provided, please contact Bryn Boughton, Feed.fm's Vice President of Music Affairs at bryn@feed.fm.