Last Modified: December 6th, 2021
Welcome, and thank you for your interest in Katalyst Interactive Inc. (“Katalyst,” “we,” or “us”) and our website at katalyst.com, along with our related websites, networks, applications, mobile applications, and hardware products and accessories. These Terms of Purchase and Service are a legally binding contract between you and Katalyst regarding your purchase of our Components and your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 16, you agree that disputes arising under these Terms (including any dispute arising from your purchase or use of a Component) will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND KATALYST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 16.)
1. Katalyst Overview. Katalyst provides a power assisted training device comprised of a full-body suit (the “Suit”) integrated EMS technology (the “Impulse Pack”) and related accessories which may be offered by Katalyst from time to time (collectively, the “Component(s)”). To use certain features of the Component, you must connect to our service, which offers digital fitness and training content and various other features, including through a mobile application (collectively, the “Service”). The Component and Service are referred to collectively as the “Katalyst Training System”
2. Use of the Service.
2.1 Eligibility. You must be an adult to purchase and/or use the Katalyst Training System. By agreeing to these Terms, you represent and warrant to us that: (a) you are an adult (at least the age of majority in your jurisdiction); (b) you have not previously been suspended or removed from the Katalyst Training System; and (c) your registration and your use of the Katalyst Training System is in compliance with any and all applicable laws and regulations.
2.2 Your Health. By accessing the Katalyst Training System, you acknowledge and agree that your performance of any and all exercises or activities recommended by the Katalyst Training System is wholly at your own risk. You acknowledge and agree that the Katalyst Training System is intended for use only by individuals healthy enough to perform strenuous exercise.
a) You must not use the Katalyst Training System if any of the following are true:
i. you have a pacemaker (artificial pacemaker), implanted defibrillator, or other implanted metallic or electronic device. Such use could cause electric shock, burns, electrical interference, or death.
ii. you are menstruating or pregnant;
iii. you are experiencing extreme muscle strain or trauma, or if you are experiencing a muscle strain condition such as rhabdomyolysis;
iv. you have been diagnosed with any heart problem or condition,
v. you have an inadequate blood supply (ischemia) or a serious blood circulation disorder in the lower limbs;
vi. you have an abdominal or groin hernia; or
vii. you answered “yes”, “maybe” or “I don’t know” to one or more of the questions listed on page 2 of the Katalyst Instruction Manual;
b) Before using the Katalyst Training System, we highly recommend you seek guidance from a qualified health care practitioner if you have any preexisting injuries or conditions that may interfere with recommended activities, or have any of the following:
i. a tendency to bleed internally (hemorrhage) following trauma or fracture;
ii. acute trauma or a fracture or following recent surgery when muscle contraction may disrupt the healing process;
iii. been diagnosed with epilepsy or another neurological disorder;
iv. nerve damage resulting in a lack of feeling in a particular area of the body;
v. a loss of muscle tissue or muscle atrophy, experience muscle spasms, or have muscles associated with painful or afflicted joints;
vi. persistent pain;
vii. required muscle rehabilitation; or
viii. suspicion of any heart condition,
2.3 By accessing the Katalyst Training System, you affirm and represent that either (a) none of 2.2(a) through (i) are true or otherwise apply to you, or (b) your general practitioner or other qualified medical professional has been consulted and has approved your use of the Katalyst Training System.
2.4 YOU ACKNOWLEDGE AND AGREE THAT KATALYST IS NOT A HEALTH CARE ORGANIZATION, AND ITS WORKOUT CONTENT AND EXERCISES OR ANY OTHER INFORMATION PROVIDED BY THE KATALYST TRAINING SYSTEM OR ANY KATALYST EMPLOYEES OR REPRESENTATIVES DOES NOT CONSTITUTE MEDICAL ADVICE, TREATMENT, PRESCRIPTIONS, OR DIAGNOSES. KATALYST AND ITS EMPLOYEES AND REPRESENTATIVES ARE NOT QUALIFIED PHYSICIANS AND CANNOT SAY WHETHER YOU ARE HEALTHY ENOUGH TO TAKE PART IN THE KATALYST TRAINING PLATFORM. YOU, IN CONSULTATION WITH YOUR OWN CHOSEN, QUALIFIED MEDICAL PROFESSIONALS, ARE SOLELY RESPONSIBLE FOR MAKING THIS DETERMINATION, AND YOU HEREBY AGREE TO EXPRESSLY ASSUME AND ACCEPT ANY AND ALL RISKS AND RESPONSIBILITY OF INJURY, PHYSICAL HARM OR DEATH, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You should discontinue exercise in cases where it causes pain or severe discomfort and should consult a medical professional prior to returning to exercise in such cases. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY.
2.5 Your Safety. By accessing the Katalyst Training System, you affirm and represent that you have read, understand, and will comply with the Katalyst Training System safety instructions and manual available at katalyst.com/instructions (the “Katalyst Instruction Manual”), and any other safety or operating instructions provided by Katalyst from time to time.
2.6 Third-Party Equipment. Except as expressly provided for in the Katalyst Instruction Manual or otherwise through the Services the Katalyst Training System is not intended for use with any third party equipment or any third-party training content. YOUR USE OF ANY THIRD PARTY EQUIPMENT OR TRAINING CONTENT IS WHOLLY AT YOUR OWN RISK.
3. Accounts and Registration. To access most features of the Services, you must register for an account (“Katalyst Account”). When you register for a Katalyst Account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at [email protected].
3.1 Membership Holder and Members. A “Member” is any individual who has a Katalyst account. A “Membership Holder” is any Member who activates and pays the Subscription Fees (as defined below) for a Subscription Service.
3.2 Multiple Members. As a Membership Holder you may activate one or more Members on each Subscription Service. Each Member must register for their own Katalyst Account, and accept these Terms. Katalyst may impose restrictions on the number of streams that can occur simultaneously under a single Subscription Service or the maximum number of Members per Subscription Service. The Membership Holder is responsible for all activity under their Subscription Service.
4. General Purchase Terms.
4.1 Availability. Purchases of the Component are subject to estimated availability and availability is not guaranteed. Katalyst reserves the right to impose quantity limitations on any order.
4.2 Price. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and exclude any applicable shipping and handling, taxes and other applicable charges (if any). Except as set forth in Section 4.8, all fees are non-refundable. Katalyst reserves the right to determine pricing for the Katalyst Training System. Katalyst will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Katalyst may change the fees for any feature of the Service, including additional fees or charges, if Katalyst gives you advance notice of changes before they apply. Katalyst, at its sole discretion, may make promotional offers with different features and different pricing to any of Katalyst’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms. All orders for the Component must be paid in full, including shipping and handling, prior to delivery by Katalyst of the Component to you. Katalyst reserves the right to suspend delivery and performance until full payment is received.
4.3 Authorization. You authorize Katalyst (and its third party providers, as applicable) to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Katalyst, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Katalyst may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.4 Component Orders. Your order constitutes an offer to purchase a Component, and all orders are subject to Katalyst’s acceptance. Except to the extent prohibited by applicable law, Katalyst may accept, decline, or place limits on your order for any reason. You do, however, acknowledge that by clicking on the “Buy”, “Buy Now”, “Purchase”, “Pay Now” or other similar button, you enter into an obligation to pay for the Component. Your order is not complete until Katalyst informs you that your order has been confirmed and shipment is ready. If Katalyst rejects your offer, Katalyst will, as your sole and exclusive remedy and Katalyst’s sole and exclusive liability, refund the amount you paid as described in Section 4.8. Katalyst will send you an email to the address provided by you once the Component is ready for shipment to indicate whether your order has been confirmed. If you have any questions, comments, or concerns regarding Katalyst’s order acceptance policy, or if you believe that your order was rejected in error, please contact Katalyst at [email protected].
4.5 Title, Risk of Loss. Title to the Component will pass to you when the Component is delivered to the carrier, after which all risk of loss or damage to any Component will be yours, subject to any rights you may have under the limited warranty set forth in Section 14.1.
4.6 Delivery. Katalyst will attempt in good faith to deliver the Component in accordance with your order or any other schedule Katalyst may provide to you when placing the order, but Katalyst will not be responsible or liable for any delays or failure in such delivery. Katalyst expressly reserves the right to effect delivery of the Component ordered in any number of separate shipments, and the modes of transport and carriers will be decided at Katalyst’s discretion. During any period of shortage, Katalyst may allocate its supply of the Component in any manner Katalyst deems appropriate. Your order will be delivered to the delivery address you specify when placing your order. If your delivery address is geographically remote or otherwise difficult to deliver to, it is possible that we may not be able to deliver there. If that is the case, we will notify you before we accept your order. Orders cannot be delivered to PO Box or similar addresses. Katalyst will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond Katalyst’s reasonable control. In such cases, Katalyst will have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time.
4.7 Inspection. You should carefully examine all deliveries of the Component upon delivery, and notify Katalyst of any alleged error, shortage, defect or non-conformity of the Component within 5 days after receipt. Except as otherwise set forth in the limited warranty set forth in Section 14.1, your failure to examine and report will, to the maximum extent permitted by applicable law, constitute a waiver of any claim against Katalyst arising under these Terms or by law with respect to any such error, shortage, defect, or non-conformity reasonably discoverable by examination. You agree to make any and all claims for damage or loss in transit against the carrier.
4.8 Returns and Refunds. Katalyst’s returns and refund policy is available at support.katalyst.com.
4.9 Export Control. You acknowledge that the Component may be subject to export control laws and other laws and regulations of the United States and other countries, and that if Katalyst ships the Component to you, the Component may be impounded or otherwise confiscated by customs or other authorities. You are responsible for compliance with all applicable export control laws and regulations. You represent that you will not export, re-export, or transfer indirectly or directly any Component outside of the United States without obtaining proper authorization from the applicable government agencies. Without limiting the immediately preceding sentence, you will not export, re-export, or transfer directly or indirectly any Component to: (a) an embargoed/terrorist supporting country, including Cuba, Iran, North Korea, Syria, Sudan, or any other such country as determined by the U.S. government; (b) a person or entity barred by the U.S. Government on export activity lists, including persons or entities on the Treasury Department Specially Designated National List, Entities List, and Denied Persons List; or (c) any destination for an end use that is prohibited by applicable law. You will defend and hold Katalyst harmless against all claims, damages, or liability resulting from breach of the foregoing.
4.10 Component Information; Changes. While we have taken reasonable steps to depict the Component as accurately as possible through the photographs and other images featured on our websites, the detailing (such as color, pattern and texture, etc.) you see on-screen will depend on your monitor and, as such, may not exactly reflect the actual detailing of a Component when you receive it. In addition, Katalyst expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any Component or the Service.
4.11 Subscription Service. The Service may include a membership subscription that includes automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Katalyst to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. For information on the “Subscription Fee”, please see our website at katalyst.com. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next billing period (e.g., monthly billing periods will be billed on the same day each month). The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. Your Subscription Fee will be billed to the payment method you provide to us during registration or the payment method associated with your applicable Apple iOS device. For Subscription Services paid for through your Apple iOS device, you may cancel the Subscription Service by following the steps described in this Apple support article www.support.apple.com/en-us/HT202039.
4.12 Delinquent Accounts. Katalyst may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees.
5.1 Limited License. Subject to your complete and ongoing compliance with these Terms, Katalyst grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non sub-licensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
5.2 License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform any portion of the Service; (b) make modifications to any portion of the Service; (c) access the Service (or any portion of the Service) in order to build a competitive or similar service; or (d) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
5.3 Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Katalyst Training System (“Feedback”), then you hereby grant Katalyst an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Katalyst Training System and create other products and services.
6. Ownership; Proprietary Rights. The Katalyst Training System is owned and operated by Katalyst. The videos, visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Katalyst Training System, including any computer code installed on the Components (“Materials”) provided by Katalyst are protected by intellectual property and other laws. All Materials included in the Katalyst Training System are the property of Katalyst or its third party licensors. Transfer of title to the Components does not include any Materials included or embedded in the Component, which Materials are made available to you under a license from Katalyst. Except as expressly authorized by Katalyst, you may not make use of the Materials. Katalyst reserves all rights to the Materials not granted expressly in these Terms.
7. Third Party Terms
7.1 Third Party Services and Linked Websites. Katalyst may provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on Katalyst with an account on the third party service, such as Spotify. By using one of these tools, you agree that Katalyst may transfer that information to the applicable third party service. Third party services are not under Katalyst’s control, and, to the fullest extent permitted by law, Katalyst is not responsible for any third party service’s use of your exported information. The Service may also contain links to third party websites. Linked websites are not under Katalyst’s control, and Katalyst is not responsible for their content.
7.2 Third Party Software. The Katalyst Training System may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Katalyst Training System is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
8. Digital Millennium Copyright Act
8.1 DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:
Katalyst Interactive Inc.
ATTN: Legal Department (Copyright Notification)
8400 W Sunset Road, Suite 300, Las Vegas, NV 89113
Email: [email protected]
Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
b. a description of the copyrighted work or other intellectual property that you claim has been infringed;
c. a description of the material that you claim is infringing and where it is located on the Service;
d. your address, telephone number, and email address;
e. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
8.2 Repeat Infringers. Katalyst will promptly terminate the accounts of users that are determined by Katalyst to be repeat infringers.
9.1 Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2 Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. BY USING THE KATALYST TRAINING SYSTEM YOU AGREE NOT TO:
a. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
c. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
d. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
e. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
f. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
g. attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Modification of these Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days’ notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon expiration of such 7-day period or your acceptance of the modified Terms, whichever occurs first. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 11, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
12. Term, Termination and Modification of the Service
12.1 Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 12.2.
12.2 Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Katalyst may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your Katalyst Account and these Terms at any time by contacting customer service at [email protected].
12.3 Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your Katalyst Account or the Service; (c) you must pay Katalyst any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 12.3, 13, 14.3, 15, 15 and 16 will survive.
12.4 Modification of the Service. Katalyst reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Except as otherwise set forth in our return and refund policy at support.katalyst.com , Katalyst will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Katalyst Training System, and you will defend and indemnify Katalyst and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Katalyst Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Katalyst Training System; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
14. Warranties and Disclaimers
14.1 Limited Warranty for Components. Please carefully review the limited warranty for Components, available at katalyst.com/warranty, before making a purchase decision.
14.2 No Warranty for Modified Components. If you modify a Component, please be aware that your modification may cause loss of access to the Service or loss of some or all functionality of your Component. In addition, modification of your Component voids the limited warranty.
14.3 Disclaimer. THE KATALYST TRAINING SYSTEM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KATALYST TRAINING SYSTEM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. KATALYST DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE KATALYST TRAINING SYSTEM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE KATALYST TRAINING SYSTEM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. KATALYST DOES NOT WARRANT THAT THE KATALYST TRAINING SYSTEM OR ANY PORTION OF THE KATALYST TRAINING SYSTEM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE KATALYST TRAINING SYSTEM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND KATALYST DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE KATALYST TRAINING SYSTEM OR KATALYST ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE KATALYST TRAINING SYSTEM WILL CREATE ANY WARRANTY REGARDING ANY OF THE KATALYST ENTITIES OR THE KATALYST TRAINING SYSTEM THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE KATALYST TRAINING SYSTEM AND YOU’RE DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE KATALYST TRAINING SYSTEM AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY CAUSED BY THE KATALYST TRAINING SYSTEM, OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Katalyst does not disclaim any warranty or other right that Katalyst is prohibited from disclaiming under applicable law.
15. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE KATALYST ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE KATALYST TRAINING SYSTEM OR ANY MATERIALS OR CONTENT ON THE KATALYST TRAINING SYSTEM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY KATALYST ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.EXCEPT AS PROVIDED IN SECTION 16.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, (A) THE AGGREGATE LIABILITY OF THE KATALYST ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO KATALYST FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; AND (II) $100; AND (B) THE AGGREGATE LIABILITY OF KATALYST TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY COMPONENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT YOU PAID TO KATALYST FOR THAT COMPONENT.EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 15 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
16. Dispute Resolution and Arbitration
16.1 Generally. In the interest of resolving disputes between you and Katalyst in the most expedient and cost-effective manner, and except as described in Section 16.2 and 16.3, you and Katalyst agree that every dispute arising in connection with these Terms (including any dispute arising from your purchase or use of a Component) will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND KATALYST ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
16.2 Exceptions. Despite the provisions of Section 16.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
16.3 Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms by sending a letter to Katalyst Interactive Inc., Attention: Legal Department – Arbitration Opt-Out, 8400 W Sunset Road, Suite 300, Las Vegas, NV 89113 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Katalyst receives your Opt-Out Notice, this Section 16 will be void and any action arising out of these Terms will be resolved as set forth in Section 17.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
16.4 Arbitrator. Any arbitration between you and Katalyst will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Katalyst. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
16.5 Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Katalyst’s address for Notice is Katalyst Interactive Inc., 8400 W Sunset Road, Suite 300, Las Vegas, NV 89113. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or Katalyst may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Katalyst must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Katalyst in settlement of the dispute prior to the award, Katalyst will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
16.6 Fees. If you commence arbitration in accordance with these Terms, Katalyst will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in King County, Washington but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Katalyst for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
16.7 No Class Actions. YOU AND KATALYST AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Katalyst agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
16.8 Modifications to this Arbitration Provision. If Katalyst makes any future change to this arbitration provision, other than a change to Katalyst’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Katalyst’s address for Notice of Arbitration, in which case your account with Katalyst will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
16.9 Enforceability. If Section 16.7 or the entirety of this Section 16 is found to be unenforceable, or if Katalyst receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 16.2 will govern any action arising out of or related to these Terms.
17.2 Governing Law. These Terms are governed by the laws of the State of Washington without regard to conflict of law principles. You and Katalyst submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Washington, and we make no representation that Materials included in the Katalyst Training System are appropriate or available for use in other locations.
17.4 Additional Terms. Your use of the Katalyst Training System is subject to all additional terms, policies, rules, or guidelines applicable to the Katalyst Training System or certain features of the Katalyst Training System that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
17.5 Force Majeure. Katalyst will not be liable to you for any delay in delivery of the Component or your inability to access the Service, including any delay or lack of access due to an event beyond Katalyst’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of Katalyst’s control. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms or any order that is caused by events outside our reasonable control.
17.7 Contact Information. The Katalyst Training System is offered by Katalyst Interactive Inc., located at 8400 W Sunset Road, Suite 300, Las Vegas, NV 89113. You may contact us by sending correspondence to that address or by emailing us at [email protected].
17.8 Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Katalyst Training System or to receive further information regarding use of the Katalyst Training System.
17.9 No Support. You may request support for the Katalyst Training System, including any problems with the Component, by contacting us at [email protected]. We are under no obligation to provide support for the Katalyst Training System. In instances where we may offer support, the support will be subject to published policies.
17.10 International Use. The Katalyst Training System is intended for visitors located within the United States. We make no representation that the Katalyst Training System is appropriate or available for use outside of the United States. Access to the Katalyst Training System from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Katalyst only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.