PUM, LLC and The Push Up Machine
Your Agreement to the Terms & Conditions of this End User Agreement.
Please read the terms and conditions of this Agreement (the “Terms”) carefully before ORDERING OR using A PUM (defined below). If You are not willing to be bound by all the Terms of this Agreement, You are not permitted to ORDER OR use A PUM OR ACCESS ANY OF THE PLATFORM. This is a binding legal Agreement between you and PUM, LLC (referred herein as “PUM, LLC”, or “We” (“Us” or other forms thereof) and future subsidiaries and affiliates (collectively, “The PUM Entities”). The term “You” and “Your” refers to the PURCHASER OR user of ONE OR MORE PUMs.
You hereby agree to all of these terms and conditions by either clicking “I Agree” if You are presented with that option, or when You perform any one or more of the following activities:
You order a Push Up Machine (“PUM”);
You use a PUM; or
You access or use our Platform or any materials or Information thereon.
Some parts of our Platform may require You to agree to other terms and conditions in addition to this Agreement (“Supplemental Terms”). Other than those Supplemental Terms and third party agreements related to Your use of third party content or exercise equipment , this Agreement represents the entire agreement between You and all the PUM Entities concerning Your use of the Platform, and it supersedes any prior proposal, representation, or understanding between the parties. We may from time to time amend, supplement or modify the Terms.
If We make any changes to the Terms, we will post an updated version of the Terms or communicate notice of the changes to You in some other manner. Notwithstanding the foregoing, it is Your responsibility to check the terms periodically for changes. If You do not agree with the changes made to the Terms, You have a right to return the PUM within the first ninety (90) days from your order, and receive a refund based on our refund policy.
Your continued use of the PUM or the Platform following the posting of any updated terms and conditions constitutes Your acceptance to be bound by such updated terms and conditions. Any and all use of the Platform after the posting of updated terms and conditions will be subject to such updated terms and conditions.
We recommend that You consult a physician for a complete physical examination before beginning any fitness program or before using any exercise equipment, particularly if You have high blood pressure, high cholesterol or heart disease; have a family history of any of the preceding conditions; are over 45; smoke; are pregnant; are obese have not exercised regularly in the past year; are taking any medication; or have any other medical condition. see also sections 4 and 5 below for important limitations, disclaimers and exclusions.
“Information” means the PUM Technology (defined below) and any other records, data, and other information accessible through or provided to the Platform.
“PUM Technology” means the Push Up Machine and any know-how, use suggestions, instructions, processes, methodologies, intellectual property, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, user manuals, on-line documentation, products or other technology and materials of any kind, or any enhancement thereto, used by PUM, LLC in connection with the PUM or made available by PUM, LLC to You.
Proper Use of the Platform
You agree to use the PUM in a manner consistent with its intended use.
Intellectual Property Protection of the PUM and the Platform
You acknowledge that all PUM Technology and all materials and functionality available within the Platform are protected by copyrights, trademarks, service marks, patents (including U.S. Patent 9,700,757 and other patents pending), trade secrets and/or other proprietary rights (“Intellectual Property”) and are owned by PUM, LLC or are used by permission.
All trademarks used by PUM, LLC are the property of their respective owners and are used by permission. All Information on the PUM, LLC Facebook page, website, Indiegogo page, social media, and other Internet accessible sites (collectively “the Platform”), is the proprietary property of PUM, LLC or third parties with whom we have a business alliance, and title to the Information and all intellectual property rights protecting the Information remains with PUM, LLC. You agree to keep the Information confidential and free from unauthorized access or use, and not to divulge, provide, or make the Information available to a third person or party, unless said person or party is under Your direct professional supervision. Further, You may not assign, convey, sublicense, or otherwise transfer this agreement or any right, license, or privilege to the Information to another party.
You agree not to copy, duplicate, download, or otherwise disseminate Information without the explicit written permission of PUM, LLC. You further agree not to modify or alter the physical or electronic characteristics of the Information, or any aspect of the Platform’s electronic environment, and to not be party to any attempt to dismantle, reverse engineer, or electronically intrude into the PUM or the Platform, or PUM, LLC’s proprietary systems.
Disclaimer of Warranties
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU OR MAY BE LIMITED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH LOCAL LAWS.
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED. THE PUM AND THE PLATFORM IS PROVIDED ON AN “AS IS” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. PUM, LLC DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED CONDITION OR WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. PUM, LLC MAKES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE PUM, THE PLATFORM, ANY CONTENT ON THE PLATFORM, OR ANY THIRD PARTY CONTENT.
PUM, LLC MAKES NO WARRANTY OR REPRESENTATION THAT: (a) THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE PUM OR USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE OR ACHIEVE ANY PARTICULAR RESULT; (c) YOUR USE OF THE PUM, THE PLATFORM, OR THE QUALITY OF ANY PRODUCTS, APPLICATIONS, PLATFORM CONTENT, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED FROM THE PLATFORM WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. IN PARTICULAR, THE PLATFORM’S OPERATION MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR TECHNICAL IMPROVEMENTS. IN ADDITION TO THE OTHER DISCLAIMERS AND LIMITS OF LIABILITY SET FORTH HEREIN, PUM, LLC SPECIFICALLY DISCLAIMS ALL LIABILITY CAUSED BY ANY SUCH INTERRUPTION OR ERRORS IN FUNCTIONALITY, FAILURE OF ACCESS, OR POOR USE CONDITIONS OF THE PUM OR THE PLATFORM FOR ANY REASON.
YOU ASSUME ALL RISK FOR ANY DAMAGE OR LOSS OF DATA THAT RESULTS FROM USING THE PLATFORM.
PUM, LLC DOES NOT GUARANTEE AND IS NOT OBLIGATED TO GUARANTEE THE AVAILABILITY, ACCESSIBILITY, OR USABILITY OF OUR PLATFORM. PUM, LLC, IN OUR SOLE DISCRETION, MAY INTERRUPT THE AVAILABILITY, ACCESSIBILITY, OR USABILITY OF OUR PLATFORM, WITHOUT NOTICE, AT ANY TIME, WITHOUT ANY LIABILITY.
Health Disclaimer; Indemnity
This Platform and the PUM is not a medical device, is not a rehabilitation, therapy or treatment device, and is strictly and solely provided as a tool to improve your technique when doing pushups. PUM, LLC is not a medical provider or organization and cannot – and does not – give You medical treatment or advice, or a medical diagnosis. Nothing contained in the Platform should be construed as medical advice, rehabilitation, therapy, treatment, or a medical diagnosis. The instructions and other information provided by PUM, LLC or third parties should not be interpreted as a substitute for medical professional and physician consultation, evaluation, treatment, or good sense and personal judgment about one’s own condition. You are urged and advised to seek professional medical advice before beginning any health, fitness and wellness related effort or regimen.
The risk of injury from use of the PUM in a fitness regimen and/or from the performance of any exercise is significant, including the potential for catastrophic injury or death. You should and must consult a medical professional before undertaking any fitness regimen or exercise program, including any exercises, techniques, or changes to the levels of exertion or activity, or as otherwise set forth or described on the PUM, LLC Platform or using the PUM. The text, pictures, and descriptions set forth on the Platform and provided with the PUM is for educational purposes only (e.g., the information illustrates and explains various fitness-related and exercise techniques) and does NOT advise that You or any other particular user undertake or perform any particular technique, level of exertion, or exercise. You agree that You will not undertake or perform any exercise or technique described or otherwise provided through this Platform or otherwise provided with the PUM until and unless You consult with and are cleared by a qualified medical doctor in relation to such participation.
In conjunction with the Disclaimer located at the beginning of these Terms, the Platform is not intended for use by minors, pregnant women, or individuals with any type of injury or other health condition and/or who may have or be susceptible to other physical limitations or health problems. As are all users, such individuals are specifically warned to seek professional medical advice prior to initiating any form of sports training, physical exertion or training, or exercise regimen.
you hereby fully release and agree to indemnify and hold harmless the PUM PARTIES (including without limitation PUM, LLC) and each of their parents, subsidiaries, affiliates, successors, assigns, and their respective officers, directors, members, shareholders, employees, agents, and suppliers from any claim, action, demand, loss, or damages (including attorneys’ fees) arising out of or relating to your (or if you are a trainer, medical professional, or other institutional user, your customers’ or patients’) use of the PUM, the Platform, the Information, or any other products, exercises, instructions, or advice on the Platform, your violation of these Terms, your violation of any rights of another, or your failure to perform your obligations hereunder.
Limitations of Liability;
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION MAY NOT APPLY TO YOU OR MAY BE LIMITED TO THE MINIMUM EXTENT NECESSARY TO COMPLY WITH LOCAL LAWS. THE LIMITATIONS AND EXCLUSIONS, AS WELL AS THE TERMS AND CONDITIONS SET FORTH HEREIN FORM AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND PUM, LLC, AND THE PRICES CHARGED BY PUM, LLC WOULD BE SIGNIFICANTLY HIGHER ABSENT THESE LIMITATIONS, EXCLUSIONS, TERMS, AND CONDITIONS SET FORTH HEREIN, AND PUM, LLC WOULD NOT HAVE OFFERED THE PUM AT THE PRICE OFFERED TO YOU ABSENT SUCH LIMITATIONS, EXCLUSIONS, TERMS, AND CONDITIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LOCAL LAW, PUM, ITS EMPLOYEES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SERVICE PROVIDERS, LICENSORS, AGENTS, OR ANY OF THEIR HEIRS OR ASSIGNS (THE “PUM PARTIES”), SHALL NOT BE LIABLE FOR: ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY, WRONGFUL DEATH, LOSS OF COMPANIONSHIP OR CONORTIUM, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA) ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM OR THE PUM, OR THEIR USE, EVEN IF PUM, LLC OR ANY OF THE OTHER PUM PARTIES HAS PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION LOSSES OR DAMAGES ARISING IN WHOLE OR IN PART FROM:
(A) THE USE OF OR THE INABILITY TO USE, OR THE MALFUNCTION OF THE PLATFORM OR THE PUM;
(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO, THROUGH OR FROM THE PLATFORM;
(C) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OF DATA, MALICIOUS BEHAVIOR;
(D) PUM , LLC CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, RELY UPON, MODIFY OR DISTRIBUTE;
(E) YOUR PURCHASE OF THE PUM, OR OTHER PRODUCTS OR SERVICES OF ANY KIND FROM ANY SOURCE VIA THE PLATFORM OR THROUGH ANY OTHER MEANS; AND, REGARDLESS OF WHETHER OR NOT SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AS SET FORTH IN THIS PROVISION.
TO THE EXTENT ALLOWED BY LAW, PUM, LLC SHALL HAVE NO LIABILITY FOR UNAUTHORIZED THIRD-PARTY ACCESS TO, OR ALTERATION, LOSS, CORRUPTION OR DESTRUCTION OF, ANY INFORMATION CONTAINED ON THE PLATFORM HOWEVER CAUSED,
IN ANY EVENT, THE TOTAL LIABILITY OF PUM, LLC TO YOU OR ANY OTHER USER OF THE PUM OR THE PLATFORM FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL BE LIMITED TO AND SHALL IN NO EVENT EXCEED THE SUM OF THE GREATER OF (A) THE AMOUNT YOU PAY FOR OUR SERVICES, OR (B) ONE-HUNDRED FIFTY U.S. DOLLARS (US$150.00). THIS LIMITATION APPLIES REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, NON-INFRINGEMENT, AND OTHER CAUSES OF ACTION OR ALLEGATIONS.
NOTE: SOME JURISDICTIONS EITHER LIMIT THE PERMISSIBLE SCOPE OF OR DO NOT ALLOW CERTAIN DISCLAIMERS AND LIMITATIONS SUCH AS THOSE APPEARING IN THIS AGREEMENT. ACCORDINGLY, SOME OF THE LIMITATIONS AND DISCLAIMERS APPEARING HEREIN MAY NOT APPLY TO YOU.
Your sole and exclusive remedy shall be the return of the PUM and a refund in accordance with PUM, LLC’s refund policy.
Controlling Law; Venue; Service of Process
This Agreement, and any disputes arising from, relating to, or touching upon the Agreement and/or the subject-matter hereof, shall be construed under and governed by the laws of the State of Indiana, without giving effect to the choice or conflicts of laws provisions of any jurisdiction to the contrary.
Except where restricted by applicable law, any dispute arising out of or related to this Agreement or the subject-matter hereof, shall be brought or commenced, if at all, exclusively in the state or Federal courts located in the city of Indianapolis in the State of Indiana. By accessing and using the Platform, or purchasing or using the PUM, You (and any person or entity on whose behalf You act) hereby agree and consent to the exclusive and personal jurisdiction and venue of any state or federal court located in Indianapolis, Indiana, and You hereby waive all defenses of lack of personal jurisdiction and forum non-conveniens. You (and any person or entity on whose behalf You act) agree to service of process for any claim arising out of or related to this Agreement via a national private carrier (e.g., FedEx, UPS), and hereby waive personal service.
This Agreement contains the full understanding between the parties and supersedes all prior representations or agreements, whether oral or written, with respect to such matters. If any provision of the Agreement is held invalid by any law or regulation of any government, or by any court, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Agreement will remain in full force and effect.
In particular each of the exclusions or limitations in these Terms shall be construed as a separate severable provision of these Terms. If any provision of these Terms is found to be invalid or unenforceable but would be valid and enforceable if some part of the provision were deleted, the provision in question shall apply with such minimum modification(s) as may be necessary to make it valid.
Waiver of Class Action
ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR PUM, LLC WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS. IF YOU DO NOT AGREE TO THIS WAIVER OF CLASS ACTION, YOU MUST INFORM US IN WRITING, STOP USING THE PLATFORM AND THE PUM AND PUM, LLC’S OTHER PRODUCTS, AND RETURN THE PUM (UNOPENED AND UNUSED) FOR A REFUND IN ACCORDANCE WITH OUR RETURN POLICY WITHIN 90 DAYS OF YOUR FIRST ORDER OF ANY PRODUCTS.
No Third Party Beneficiaries
This Agreement is solely for the benefit of the parties, the PUM Parties, and their respective successors and assigns, and shall not be enforceable by or otherwise be interpreted in such a way as to create any third party beneficiary rights in any third party.