Last Updated: December 20, 2023
PLEASE READ THIS LEGAL DOCUMENT CAREFULLY.
Thank you for choosing to become an XPASSTM subscriber. These XPASSTM Terms of Use ("Terms") form a contract between you and Xponential Fitness, LLC (together with our affiliates, "XPO," "we, "our" or "us") and govern your access to and use of our XPASSTM offering which, in addition to the services described below in Section 3, shall also include any websites (including any social media pages) owned or controlled by us (the "Sites"); and any mobile applications for iPhone or Android owned or controlled by us (the "Apps").To aid in your understanding of these Terms, our XPASSTM offering, our Sites and our Apps shall be referred to collectively as the "XPO Services" or, simply, "the Services." By becoming an XPASSTM subscriber, or by visiting, browsing, accessing or using the Services in any way, you (as a "subscriber" or a "user," as the case may be) accept and agree to be bound by these Terms. If you do not wish to be bound by these Terms, you may not access or use the Services.
THESE TERMS CONTAIN A DISPUTES AND BINDING INDIVIDUAL ARBITRATION; CLASS ACTION WAIVER PROVISION (SEE SECTION 15) THAT REQUIRE YOU TO ARBITRATE ALL DISPUTES YOU HAVE WITH US ON AN INDIVIDUAL BASIS. YOU EXPRESSLY AGREE THAT DISPUTES BETWEEN YOU AND XPO WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU HEREBY WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS WIDE ARBITRATION.
1. ELIGIBILITY
You represent and warrant to us that (a) you are at least eighteen (18) years of age or the age of majority in your respective jurisdiction; (b) any information you provide in connection with our Services is accurate and true; (c) you will not use our Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services or any other services we may offer; and (d) your use of Services will be in compliance with these Terms. You may enter into these Terms of behalf of a minor between the ages 14 and 17, but you will remain liable for all billing on the account, and both you and the minor will be responsible for compliance with all Terms herein and the rules for participating Studios.
2. ACCEPTANCE
2.1 Acceptance of Terms. By accessing and/or using the Services, or clicking any button to indicate your consent, you accept and agree to be bound by these Terms, just as if you had agreed to these Terms with a handwritten signature. If you do not agree with these Terms, then you may not use the Services.
2.2 Amendment of the Terms. We may amend these Terms from time to time. Unless we provide a delayed effective date, all amendments will be effective upon posting of such updated Terms. Your continued access to or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2.3 Additional Terms. In addition to these Terms, certain offers, products, services, functionalities or features may also be subject to additional terms, conditions, guidelines or rules which may be posted or communicated by us or applicable third parties at any time. Your use of any such offer, product, service, functionality or feature is subject to those additional terms and conditions, which are hereby incorporated by reference into these Terms, provided that in the event of any conflict between such additional terms and these Terms, these Terms shall control.
2.4 Electronic Signatures. Under the Electronic Signatures in Global and National Commerce Act ("E-Sign Act"), these Terms and all electronically executed documents related hereto are legally binding in the same manner as are hard copy documents executed by hand signature. When accepted in electronic form, these Terms and all related documents shall be governed by the E-Sign Act. By clicking on the button marked "SUBMIT," "ACCEPT," "PLACE MY ORDER," "CONFIRM PURCHASE," or such similar markings as may designate your acceptance and consent to these Terms, you are voluntarily submitting a legally binding electronic signature and are entering into a legally binding contract with us.
3. XPASSTM OFFERING
3.1 Description of XPASSTM Offering. XPASSTM is a subscription-based service that allows its active users in good standing to redeem tokens at participating boutique fitness studio locations affiliated with the XPO brands in the United States and Canada. Current XPO brands, which may be subject to change in the future, include Club Pilates®, Pure Barre®, Stretch Lab®, Yoga Six®, Rumble®, BFT® and CycleBar® (collectively, the "XPO Brands"). Unless expressly stated to the contrary in a Studio’s Liability Waiver Form (or similar documentation), all studios affiliated with the XPO Brands are independently owned and operated franchise locations (each, a "Studio" and, collectively, the "Studios"); unless otherwise noted, XPO does not own or operate any of the Studios and shall not be liable for their acts or omissions. In exchange for the payment of fees, and depending on the specific subscription plan purchased, XPO allocates tokens to XPASSTM users which may be redeemed for (a) physical Studio access and participation in available classes at participating Studio locations; and/or (b) private one-on-one sessions at participating Studio locations.
3.2 XPASSTM Subscription Plan. We reserve the right to change or modify XPASSTM subscription plans at any time, with or without advance notice. At this time, we offer one XPASSTM subscription plan – the "All Access Subscription" – which permits XPASSTM users the right to redeem tokens at any participating Studio location in the United States or Canada. Tokens under the All Access Subscription may be redeemed for fitness classes or, where offered, private one-on-one sessions. In addition, the All Access Subscription grants users a limited, revocable, non-exclusive license to create an account and use the XPASSTM App for so long as the user’s All Access Subscription remains current and in good standing.
3.3 Payment Options. You may choose to pay for your XPASSTM subscription in several different ways. First, you can choose to prepay for all of your XPASSTM tokens up front and in full. This is called a "Prepaid Subscription." Next, you can choose to pay for your XPASSTM tokens on a recurring dues basis, meaning you authorize us to bill you each month in the same amount and at the same time in exchange for a predetermined number of tokens allocated to your account for redemption. This is called a "Recurring Dues Subscription." Lastly, you can choose to buy additional tokens at any time through an "Add-On Package." Add-On Packages come in varying tokens amounts, they are always prepaid, and Add-On Package tokens may only be used in the 30 days immediately following the date of purchase (after which, if not used, any Add-On Package tokens will be considered forfeited and lost, and no refund will be provided). Regardless of whether you have a Prepaid or Recurring Dues Subscription, or you have purchased one or more Add-On Packages, you are responsible for all activity under your subscription account and your compliance with these Terms.
3.4 Prepaid Subscriptions. A prepaid subscriber chooses to pay for all XPASSTM tokens up front and in full. Prepaid subscribers have 12 months from the date of purchase to redeem any available XPASSTM tokens purchased (the "Prepaid Term"). A Prepaid Subscription will expire automatically upon the expiration of the Prepaid Term or after the prepaid subscriber has redeemed all of his or her available XPASSTM tokens, whichever occurs first. Any XPASSTM tokens remaining at the expiration of the Prepaid Term will be forfeited and lost. With very limited exception (as described below), XPASSTM tokens that have been prepaid are considered non-refundable. Please note that Prepaid Subscriptions and Add-On Packages are not the same thing. Where a prepaid subscriber has 12 months to redeem any available prepaid tokens, tokens purchased during the term through an Add-On Package are only valid for a period of 30 days from date of purchase, after which, if not used, they will be forfeited and lost, and no refund will be provided.
3.5 Recurring Dues Subscriptions. A recurring dues subscriber chooses to pay for his or her XPASSTM tokens in installments, which is to say "on recurring dues basis." Recurring Dues Subscriptions are set up for a term of 30 days (the "Recurring Dues Period"). At the end of the Recurring Dues Period, unless the recurring dues subscriber has cancelled his or her account in accordance with these Terms, their subscription will continue to automatically renew for successive one-month periods until such time as the subscriber cancels or the account is terminated (collectively, the "Recurring Dues Term"). In exchange for a monthly dues payment, the recurring dues subscriber receives a predetermined number of tokens to use each month. XPASSTM tokens purchased under the Recurring Dues Subscription can only be redeemed in the same Recurring Dues Period in which they are allocated (which is a 30-day window). Please note that XPASSTM tokens purchased under a Recurring Dues Subscription do not roll over to future months. XPASSTM tokens not used during the same Recurring Dues Period in which they are allocated will be forfeited and lost, and no refund will be provided. Also, if you purchase an Add-On Package, your additional tokens may expire on a different cycle than your Recurring Dues Period; each will be tracked independently.
3.6 Billing Cycle and Auto-Renewal. All Recurring Dues Subscriptions will recur on a monthly basis until cancelled in accordance with these Terms. Recurring Dues Subscription begin on the date the user signs up for the subscription and submit payment through a valid and accepted method of payment or re-activate a pre-existing subscription. Unless we communicate a different time period, each billing cycle will last one month ("Billing Cycle") and will match each Recurring Dues Period. If you sign up as a recurring dues subscriber, please note that your Recurring Dues Subscription will automatically renew each month, and we will automatically bill you each month to your chosen method of payment, until your subscription is terminated or cancelled. By way of example, if you purchase your Recurring Dues Subscription on October 17th, your subscription will automatically renew on November 17th. All Recurring Dues Subscriptions will be governed by these Terms and will continue until cancelled or terminated regardless of whether you increase or decrease the number of XPASSTM tokens tied to your account.
3.7 Other Offers; Promotions. XPO may offer additional promotions or discounts related to XPASSTM subscriptions from time to time. Please read the details of those offers carefully, as any additional Terms presented to you during the signup process will form part of these Terms. Unless specified in writing, all discount offers that require a payment are non-refundable. Any free trial or other promotion must be used within the specified time frame of the trial or promotion. You may be required to have a valid method of payment on file in order to initiate a free trial. Where you have a valid method of payment on file with us to utilize a free trial, we will seek your consent and authorization before converting your free trial to a paid subscription and begin to charge you on a recurring dues basis in accordance with these Terms.
3.8 Redemption of Tokens. Tokens may be used to book classes at participating Studios. You may book classes through the App or at www.XPASS.fit. The total number of tokens required to book a class at a particular Studio location may vary depending on several factors, including, without limitation, the Studio’s geographic location, the type of class offered, the instructor teaching the class, the time of day, space availability, class popularity, and similar factors that may affect demand. XPO cannot and does not guarantee the availability of any particular class, venue, Studio, experience, content, instructor, or other features, and availability may change over time and at any time (including during your subscription term). Tokens have no cash value or any other value outside of the XPASSTM offering and are not redeemable for cash. For the avoidance of doubt, the tokens do not operate or serve as stored value facilities in any way. You may not transfer, trade, gift or otherwise exchange XPASSTM tokens; they are specific to you. Please note that separate from tokens, you can also buy a gift card. Gift cards and tokens are not the same thing. Unlike tokens (which can expire), gift cards do not expire until at least 5 years after their date of issuance, and, in some jurisdictions, they may never expire. Additional gift card terms and conditions apply.
3.9 Late Cancel and No-Show Fees. If you make a booking for a class at a participating Studio and fail to attend the class, or you fail to cancel by the deadlines specified in the table below, then you will lose the tokens associated with the class booked. To avoid losing your tokens due to late cancel, depending on the particular Studio where the class is booked, you must cancel by the deadline described below:
BFT has a late cancel deadline X hours prior to the start of a booked class or private session.
Club Pilates has a late cancel deadline 12 hours prior to the start of a booked class.
Club Pilates has a late cancel deadline of 24 hours prior to the start of a booked private session.
CycleBar has a late cancel deadline 12 hours prior to the start of a booked class or private session.
Pure Barre has a late cancel deadline 4 hours prior to the start of a booked class or private session.
Rumble has a late cancel deadline X hours prior to the start of a booked class of private session.
StretchLab has a late cancel deadline 12 hours prior to the start of a booked class or private session.
Yoga Six has a late cancel deadline 8 hours prior to the start of a booked class or private session.
3.10 Studio Participation. Each XPO Brand has a unique fitness offering. This is what makes the XPASSTM offering special. Studios affiliated with the XPO Brands choose to participate in the XPASSTM offering. As such, the XPASSTM offering may not be available in all countries or locations. You can view a complete listing of participating Studios at www.XPASS.fit. Unless expressly stated to the contrary in a Studio’s Liability Waiver Form (or similar documentation), each Studio is independently owned and operated. Studio owners do not participate in the administration of the XPASSTM offering or the management of your XPASSTM tokens. Before participating in any class or private session at a particular Studio, you will be required to sign, at a minimum, the Studio’s Liability Waiver Form (or similar documentation). Unless expressly stated to the contrary in a Studio’s Liability Waiver Form (or similar documentation), the Studios where XPASSTM tokens may be redeemed are wholly independent from and are not directly or indirectly owned, controlled by, under common control with, or otherwise affiliates or subsidiaries of XPO. Under no circumstances shall XPO be liable for any act or omission that occurs within a Studio participating in the XPASSTM offering.
3.11 Check-In Procedures. Before using a class, you must present proof of your XPASSTM subscription at the front desk of each Studio. The participating Studio may, in its sole discretion, provide you with a single membership card or require that you check-in to the class using the App. If the Studio provides you with a membership card, you must present the card each time you visit the Studio. If you lose the membership card, you may be charged a fee to have it replaced. XPASSTM privileges will be limited to the individual whose name appears on the membership card. Notwithstanding your potential use of a "membership card" at a participating Studio, please note that your XPASSTM subscription is not a membership. An XPASSTM subscription and a Studio membership affords the holder of such subscription or membership different rights, obligations and privileges, and each will be treated and billed separately. XPO does not provide memberships and will not be liable for any act or omission arising out of an XPASSTM subscriber’s separate Studio membership to the extent the subscriber maintains such a Studio membership.
3.12 Class Details. Subject to class capacity and scheduling requirements, each Studio participating in the XPASSTM program makes reasonable efforts to make available to all patrons (including XPASSTM subscribers) during its designated hours and days of operation certain equipment necessary to perform the classes and fitness services offered. These Studios may also provide group exercise classes and private training for member use.
3.13 Studio Membership. Studio memberships are sold separately by the Studio, not by XPO. However, Studios may sell XPASSTM subscriptions directly to its members. If you are interested in joining a particular Studio as a member, please speak directly to a sales representative at that Studio and he or she can guide you through the online purchasing process. Some group exercise classes, private training, or optional services offered by the Studio may require an additional charge. XPO and all Studios participating in the XPASSTM offering reserve the right to change their offerings at any time, with or without notice, including, without limitation, their fitness offerings, equipment, instructors, class times, class duration and/or facilities. Your Studio membership and your XPASSTM subscription are independent of each other, they are managed by different parties, and they will be billed for separately. These Terms pertain only to your XPASSTM subscription.
3.14 Compliance with Studio Rules. For all Studios participating in the XPASSTM offering, you will be expected to comply with all Studio rules, including, without limitation, rules relating to proper dress code, guest policies, the supervision of children, minimum age requirements for class participation, and class etiquette. Smoking (including e-cigarettes and vapor pens) is prohibited at all Studio locations, including the surrounding premises. You should refrain from bringing valuables into any Studio or the surrounding premises (including the parking lot). XPO shall not be liable for the loss, disappearance, theft or damage to personal property including, without limitation, money, jewelry, or other items left by you or your guests.
3.15 Freezes. If you are temporarily unable to use the XPASS service for medical reasons, you may request a freeze of your subscription in monthly increments. You may be required to provide us with a written doctor’s note at the time of requesting a freeze and may be required to complete additional documentation related to your freeze request. You acknowledge and understand that freezing your subscription will not end it and that you will still be obligated to pay your monthly dues per these Terms. You must notify us upon returning from the freeze. After the freeze, we will resume regular billing, and you will be obligated to pay your monthly dues in accordance with these Terms. A fee of up to $15 per month may be assessed for freezing a subscription. We reserve the right to adjust this freeze policy from time to time in our sole discretion. All requests must be received at least fourteen (14) days prior to your next Billing Cycle. Retroactive freezes will not be accepted.
4. CANCELLATION; TERMINATION; DEFAULT; REFUNDS
4.1 Cancellation. Both Prepaid Subscriptions and Recurring Dues Subscriptions may be cancelled at any time with a 30-day written notice to XPO. XPO provides several different channels for submitting cancellation, including (a) by sending your cancellation request by mail, or delivering it in person, to Attn: XPASSTM Cancellations, Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614; (b) by email to xpass@xponential.com; or (c) online at https://www.xpass.fit/contact. Once you have cancelled your XPASSTM subscription, you may redeem any remaining tokens until the end of your then-current Billing Cycle. At the end of your Billing Cycle, your subscription will end and any remaining tokens will be forfeited and lost; no refund will be provided. Except as expressly permitted by applicable state law (See Section 4.4 below), you will not be eligible for a prorated refund of any portion of the fees paid for Services. NOTE: Proper cancellation of your subscription cannot be accomplished by going directly to a Studio participating in the XPASSTM offering; all cancellation notices must be in writing and must go to XPO through one of the permitted channels described above.
4.2 Suspension and Termination. XPO may immediately terminate or suspend your subscription if: (a) your payment is overdue (provided that we will use reasonable efforts to notify you of the overdue payment before we terminate or suspend); (b) you provide false or inaccurate information; (c) you violate these Terms or any other Studio rules or terms then in effect; (d) you engage in conduct that is a violation of any applicable law (including, without limitation, copyright and intellectual property laws); or (e) if you engage in conduct that is threatening, abusive or harassing to XPO or Studio employees, agents, or other XPASSTM users, including, for example, making threats to physically harm or damage property. If we terminate or suspend your subscription, your license to use any content provided in connection with the subscription will also be terminated or suspended (as applicable). Notwithstanding the foregoing, individual Studio owners participating in the XPASSTM offering may deny you access to its location for any reason not expressly prohibited by law.
4.3 Default and Late Payment. If you default on any payment obligation as called for in these Terms, we will have the right to declare the entire remaining balance due and payable immediately, and you agree to pay allowable interest, and the cost of collection, including but not limited to collection agency fees, court costs and attorneys’ fees. Default will occur if any payment due under these Terms is past due for more than 90 days. A return item fee of the lesser of $25 or the maximum amount allowed by applicable law will be charged for any check, draft, credit card or order returned for insufficient funds, or for any other reason. Should any monthly payment become more than ten (10) days past due, you will be charged a late fee of the lesser of $20 per late payment or the maximum amount allowed by applicable law.
4.4 Refunds. Except as required by state law, or as specifically provided for in the "Statutory Cancellation Rights" provision in Section 23, we will issue you a prorated refund for prepaid Services only where: (a) you properly rescind (cancel) your subscription at any time prior to midnight of the third (3rd) business day after you have accepted these Terms; (b) you die and your estate seeks a refund of your account; (c) you become permanently disabled, which disability prevents you from using the Services; (d) XPO goes out of business or otherwise discontinues the XPASS Services; or (e) you relocate from the address associated with your subscription to a new residence and there is no participating Studio located within a 25 mile radius of your new place of residence. For subpart (c), If you are seeking cancellation and refund due to a permanent disability, we reserve the right to seek a letter from your physician certifying your permanent disability. For subpart (e), we reserve the right to seek proof of relocation to a new residential address with acceptable proof being a state issued ID (e.g., driver’s license), a major utility bill, or a residential lease agreement showing your new address. Any refund issued will not include any Services you have used.
5. BILLING AUTHORIZATION
5.1 Amount to be Charged. You agree to pay any one-time, prepaid or recurring monthly fees specified when you purchased your subscription (plus any applicable taxes and other charges). If the amount to be charged varies from the amount you pre-authorized (other than due to the imposition of, or change in, applicable sales tax), you have the right to receive notice of the amount to be charged and the date of the charge before the scheduled date of the transaction, unless applicable law requires you to expressly consent to the change in price. Any terms you have with your payment provider governs your use of your specified method of payment. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each Billing Cycle. Your failure to terminate and/or continue use of your subscription reaffirms that we are authorized to charge you for that subscription. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you.
5.2 Billing Authorization. You may be asked to provide a method of payment (such as a credit, charge or debit card number) that we accept in order to activate your subscription, along with other payment information. You represent and warrant that you have the legal right to use all methods of payment that you provide to us. Your authorizations in this section also apply to our payment processors and any other companies who act as billing agents for us. You hereby authorize us to charge your specified method of payment for prepaid charges or on a monthly recurring dues basis, in advance, for your subscription. You authorize the issuer of your selected method of payment to pay any amounts described herein without requiring a signed receipt, and you agree that these Terms shall be accepted as authorization to the issuer of the method of payment to pay any amounts described herein, without requiring a signed receipt from you. You authorize us to continue to attempt to charge and/or place holds with respect to all sums described herein, or any portion thereof, to your method of payment until such amounts are paid in full. You agree to provide updated payment information upon request and any time the information you previously provided is no longer valid. You acknowledge and agree that neither XPO nor any XPO agent will have any liability whatsoever for any insufficient funds or other charges incurred by you as a result of attempts to charge, and/or place holds on, your specified method of payment as contemplated by these Terms. If you provide a debit card number instead of a credit card number, you authorize all charges described herein to be applied to such debit card unless and until you provide a credit card number.
5.3 Third Party Payment Processors. You agree to pay us, through our payment processors or billing partners (as applicable), all charges at the prices then in effect for any purchase in accordance with the applicable payment terms presented to you at the time of purchase. You agree to make payment using the method of payment you provide when you set up your account. We reserve the right to correct, or to instruct our payment processors or billing partners to correct, any errors or mistakes, even if payment has already been requested or received.
5.4 Billing Inquiries. If you believe you have been billed in error for your subscription, please notify us within 60 days of the billing date by contacting our support team at (949) 490-7291, or by emailing xpass@xponential.com. XPO will not issue refunds or credits after the expiration of this 60-day period, except where required by applicable law.
6. HEALTH DISCLAIMER
6.1 Safety Warnings. We are not a health care or medical provider. The Services, and the features, functionalities, services and content made available, including without limitation any advice, information, workouts, exercises, regimens, nutritional plans, recipes or other materials, are provided for general informational purposes only, and do not constitute medical advice. They are not intended to be relied upon for determining the state of your health or in the diagnosis of any medical conditions and are not, and should not be used as, a substitute for a professional medical evaluation. We advise you to see your physician on a regular basis and to seek their advice prior to engaging in any fitness or nutrition regimen or if you have any questions or concerns regarding your health and fitness regimen or for the diagnosis of specific medical conditions.
6.2 Health Disclaimer. We will not be liable or responsible for any consequences of you having read, used or relied upon any of the Services. By using the Services, you acknowledge and understand that it may involve or provide information regarding strength, flexibility, aerobic, cardio, meditation, regeneration or other exercises, all of which can be potentially hazardous activities. You should consult with your doctor prior to using any of our Services. If you choose to use any of our Services, you should be in good health and have no disability, impairment, injury, disease or ailment preventing you from engaging in active or passive exercise or which would cause increased risk or injury or adverse health consequences as a result of using our Services, and you hereby assume all risks associated with using our Services.
7. PROHIBITED CONDUCT
You agree not to use our Services to do any of the following:
Harass, threaten, stalk, disrupt or defraud users, members or staff of XPO or Studios or any other person, or otherwise create or contribute to an unsafe, harassing, threatening or disruptive environment;
Act in a deceptive or fraudulent manner by, among other things, impersonating another person or access another user’s account or signing up for more than one account;
Bypass a security mechanism associated with the Services such as, for example, sharing any account password with any third party or encourage any other user to do so;
Permit anyone other than yourself to use any classes, private sessions or services booked under your own subscription, including other XPASSTM subscribers or users;
Reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast, use for commercial purposes or otherwise exploit any portion of the Services;
Upload material (like a virus) that could be damaging to computer systems or data of XPO or users of the Services, or otherwise use the Services in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Services;
Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others;
Upload or send to the Sites or Apps users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
Decompile, reverse engineer or disassemble the Services, in whole or in part, except as may be permitted by applicable law;
Collect or store any personally identifiable information from the Services from other XPASSTM users without their express permission;
Cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Sites or App, or unduly burdening or hindering the operation and/or functionality of any aspect of the Services;
Use, display, mirror or frame the Services, XPO’s name, any XPO trademark (including XPASSTM), logo or other proprietary information, or the layout and design of any page or form contained on a page, without XPO’s express written consent;
Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
Obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services;
Violate any Studio rules, or any other applicable law or regulation; or
Encourage or enable any other individual to do any of the above.
8. CONSENT TO CONTACT
By using our Services, you are giving us and our authorized vendors consent to contact you by email to the email address provided by you, or by text message or telephone call at the number provided for any matter related to your account, including collection of monies owed, alerts or notices regarding your purchased services, and promotions that may be of interest to you. You may update your communication preferences or revoke your consent to receiving promotional messages at any time. You expressly consent to receive autodialed and/or prerecorded messages from or on behalf of us and our authorized vendors at the phone number provided, including any wireless number, as applicable (standard text rates apply). Your consent is not a condition of purchase.
9. PROPRIETARY RIGHTS
9.1 Ownership of Intellectual Property. The contents of the Services, including its "look and feel" (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) and other material are protected under both United States and other applicable copyright, trademark and other laws. The contents of the Services belong or are licensed to XPO or its software or content suppliers. Any distribution, reprint or electronic reproduction of any content from the Services in whole or in part for any other purpose is expressly prohibited without our prior written consent. You agree not to use, nor permit any third party to use, the Sites or the Services or content in a manner that violates any applicable law, regulation or these Terms.
9.2 Copyright Infringement. Pursuant to the Digital Millennium Copyright Act (the "DMCA"), we reserve the right, but not the obligation, to terminate your license to use, or otherwise disable your account and access to our Services, in whole or in part, if we determine, in our sole and absolute discretion, that you are involved in infringing activity, including uploading, posting or sharing content that is infringing and regardless of whether the material or activity is ultimately determined to be infringing. If you believe that any of the content associated with our Services infringes on your copyright, or the copyright of anyone on whose behalf you are authorized to act, please submit your complaint to xpass@xponential.com. Please include the following information: (a) a description of the copyrighted work(s) you claim is being infringed; (b) your best contact information (phone number or email); (c) a brief statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (d) a statement that the information provided in your complaint is accurate and that, under penalty of perjury, you are the copyright owner authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please sign or electronically sign the complaint before submitting.
10. PRIVACY
Your privacy is important. Please read our Privacy Policy for information relating to how we may collect, use and disclosure your personal information. Our Privacy Policy is available here and is incorporated by reference into these Terms.
11. INDEMNIFICATION
Indemnity is an agreement to compensate someone for a loss. You agree to indemnify and hold us and our team (including owners, investors, employees, XPO Brand franchisors, independent contractors, and representatives) harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that are not allowed under these Terms due to a "Limitation of Liability" or other provision. You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (a) your use of the Services; (b) your violation of any laws or regulations; (c) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms; (d) any misrepresentations made by you or (e) your violation of these Terms.
12. NO WARRANTIES
WE ARE PROVIDING THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT AND ANY OTHER WARRANTY THAT MIGHT ARISE UNDER ANY LAW. WITHOUT LIMITING THE FOREGOING, WE MAKE NO REPRESENTATION OR WARRANTIES THAT THE SERVICES ARE OR WILL BE PERMITTED IN YOUR JURISDICTION; THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-?FREE; THAT THE SERVICES WILL MEET YOUR NEEDS OR, SPECIFICALLY, THAT THEY WILL HELP YOU MEET YOUR FITNESS GOALS; THAT WE WILL CONTINUE TO SUPPORT ANY PARTICULAR FEATURE OR FUNCTIONALITY OF THE SERVICE; THAT STUDIOS WILL BE MADE AVAILABLE IN YOUR LOCALE; THAT CLASSES WILL BE OFFERED AROUND WHERE YOU LIVE OR WORK; AND/OR WITH RESPECT TO OTHER THIRD PARTY SITES AND RESOURCES OUTSIDE OF THE SERVICES, EVEN IF LINKED TO FROM OUR SITES OR APPS.
YOU ACKNOWLEDGE THAT CLASSES AND OTHER NON-XPO PRODUCTS AND SERVICES MADE AVAILABLE THROUGH OUR SERVICES ARE PROVIDED BY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY STUDIOS PARTICIPATING IN THE XPASSTM OFFERING. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, YOUR USE OF THE SITES, APPS AND YOUR ATTENDANCE AT, PARTICIPATION IN, PURCHASE AND/OR USE OF THE CLASSES AT INDEPENDENTLY OWNED AND OPERATED STUDIOS, IS SOLELY AT YOUR OWN RISK. WE DO NOT ASSUME ANY LIABILITY OR MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ARISING OUT OF, IN CONNECTION WITH OR WITH RESPECT TO OUR SERVICES OR THE CLASSES OFFERED BY STUDIOS PARTICIPATING IN THE XPASSTM OFFERING.
TO THE EXTENT THAT ANOTHER PARTY MAY HAVE ACCESS TO OR VIEW CONTENT ON YOUR DEVICE, YOU ARE SOLELY RESPONSIBLE FOR INFORMING SUCH PARTY OF ALL DISCLAIMERS AND WARNINGS IN THESE TERMS. TO THE EXTENT ANY DISCLAIMER OR LIMITATION OF LIABILITY DOES NOT APPLY, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL APPLICABLE EXPRESS, IMPLIED, AND STATUTORY WARRANTIES WILL BE LIMITED IN DURATION TO A PERIOD OF 30 DAYS AFTER THE DATE ON WHICH YOU FIRST USED THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
YOU CERTIFY THAT YOU HAVE READ THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 AND HAVE HAD AN OPPORTUNITY TO CONSULT YOUR COUNSEL REGARDING THAT SECTION. YOU WAIVE ANY AND ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY SIMILAR STATUTES IN OTHER JURISDICTIONS), WHICH STATES:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY
YOU AGREE AND ACKNOWLEDGE THAT THE RELEASED CLAIMS EXTEND TO AND INCLUDE UNKNOWN AND UNSUSPECTED CLAIMS.
13. LIMITATION OF LIABILITY
13.1 Limitation of Liability. To the maximum extent permitted by law, you acknowledge and agree that (a) you assume full responsibility for any injury, damages or loss that results from your use of the Services or your participation in a class or private session offered by a Studio participating in the XPASSTM offering; (b) we, and any other member of our team (including officers, directors, employees, agents and representatives), will not be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they are based on negligence or we have been advised of the possibility of those damages; and (c) in any calendar month, our total aggregate liability to you arising under or in connection with these Terms (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) will be no more than what you paid us for the Services in the preceding month. For the avoidance of doubt, in no instance will XPO or any member of our team be liable for any losses or damages you suffer if you use the Services in violation of these Terms, regardless of whether we terminate or suspend your subscription due to such violation.
13.2 Time Limitation. You and XPO agree that any cause of action arising out of or related to these Terms, including, without limitation, your use of the Services, must commence within one (1) year after the cause of action accrues, otherwise the claim is permanently barred.
14. DISCLAIMERS AS TO THIRD PARTIES
We are not responsible for the behavior of any third parties, agencies or linked websites (including third-party applications, products, or services for use in connection with the Services (each, a "Third-Party Integration"). Your use of any Third-Party Integration and rights with respect to such Third-Party Integration are solely between you and the applicable third party. We are not responsible for the privacy, security or integrity of any Third-Party Integration or the practices and policies of any Third-Party Integration. We make no warranties of any kind and assume no liability of any kind for your use of any Third-Party Integration.
15. DISPUTES AND BINDING INDIVIDUAL ARBITRATION; CLASS ACTION WAIVER
"Dispute" means any claim, controversy, or dispute between you and XPO, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these Terms or the Services, or any other aspect of our relationship.
You and XPO agree to arbitrate any and all Dispute by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST XPO. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the "Arbitrator") administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum.
The Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether these Terms (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. Subject to applicable jurisdictional requirements, you may elect to pursue your claim in your local small-claims court rather than through arbitration so long as your matter remains in small claims court and proceeds only on an individual (non-class or non-representative) basis. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, fully applies.
Any arbitration hearing will occur in Los Angeles, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. An Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect. XPO will reimburse the arbitration fees due to the American Arbitration Association for individual arbitrations brought in accordance with this section for all claims totaling less than $5,000 unless the Arbitrator determines that your claims were frivolous. If you prevail on any claim for which you are legally entitled to attorney’s fees, you may seek to recover those fees from the Arbitrator.
For any claim where you are seeking relief, we will not seek to have you pay our attorney’s fees, even if fees might otherwise be awarded, unless the Arbitrator determines that your claim was frivolous. For purposes of this arbitration provision, references to you and XPO also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services.
Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings (other than small claims actions in consumer cases as discussed above) will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of Los Angeles, California, or federal court for the Southern District of California.
16. GOVERNING LAW; VENUE
These Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act), without regard to its choice of law or conflicts of law principles. If for any reason a Dispute proceeds in court rather than in arbitration (including any claims brought by parties outside of the United States), the Dispute shall be exclusively brought in the state or federal court located in Los Angeles, California.
17. NOT A HEALTH SPA OR HEALTH STUDIO. XPO is a technology company that markets and sells tokens which can be redeemed for access to and use of fitness classes and private one-on-one sessions at certain participating Studios affiliated with the XPO Brands. Unless expressly stated to the contrary in a Studio’s Liability Waiver Form (or similar documentation), XPO does not operate as, nor is it, a "health studio," "health spa," "health club," or "physical fitness establishment" as defined by some state statutes, nor does XPO offer fitness services or make available fitness equipment.
18. NOTICES
You consent to receiving all communications (including notices, agreements, disclosures or other information) from us electronically. We may communicate with you by email or by updating these Terms and posting to our Sites or Apps. For support-related inquiries, you may email xpass@xponential.com. For all other notices, please write to us at the following address:
Attn: Legal
Xponential Fitness, LLC
17877 Von Karman Ave., Ste. 100
Irvine, CA 92614
19. FORCE MAJEURE
We shall not be liable under these Terms for any delay, failure of performance or interruption of Services resulting, directly or indirectly, from causes beyond our reasonable control including, but not limited to: earthquake, lightning or other acts of God; fire or explosion; electrical faults; vandalism; cable cut; water; hurricanes; fire; flooding; severe weather conditions; actions of governmental or military authorities; national emergency or pandemics; insurrection, riots or war; terrorism or civil disturbance; strikes, lock-outs, work stoppages or other labor difficulties; computer attacks; supplier failure; or telecommunication or other internet provider failure.
20. ASSIGNMENT; NO THIRD-PARTY BENEFICIARIES
These Terms, and any rights granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void. We may assign our rights, obligations and/or these Terms at any time in our sole discretion without notice to you. These Terms shall be binding upon and will inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns.
21. ENTIRE AGREEMENT
These Terms, as may be revised, and any additional terms as permitted herein, make up the entire agreement between you and XPO in relation to our Services, and supersedes all prior agreements, representations and understandings. Any conflict between any additional terms and these Terms will be resolved in favor of these Terms.
22. GENERAL PROVISIONS
If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof. No failure or delay by us in exercising any of our right hereunder will waive any further exercise of that right. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative for XPO. Our rights and remedies hereunder are cumulative and not exclusive.
23. STATUTORY CANCELLATION RIGHTS (CERTAIN STATES ONLY)
The following statutory cancellation rights will only apply if you reside in the state listed below:
CALIFORNIA
You, the Buyer, may cancel this Agreement at any time prior to midnight of the fifth (5th) business day after the date of this agreement, excluding Sundays and holidays. To cancel this Agreement, mail, email or deliver a signed and dated notice that states that you, the buyer, are cancelling this Agreement, or words to similar effect. The notice shall be sent via first-class mail, via email from an email address on file with XPO or delivered in person to: Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614.
DISTRICT OF COLUMBIA
NOTICE TO THE BUYER. You have the right to cancel this contract during the first 15 days after the contract is made, or after the first 15 days, if, due to death, illness, injury, or a change in residence, you are unable to use the full subscription privileges in this contract. If you cancel, you will have to pay only for the goods or services you are entitled to up through the month in which you cancel, plus a registration fee of 5% of the price of this contract (not counting any finance charge), not to exceed $25. You must notify XPO, by certified or registered mail at the address given in this contract, of your intention to cancel, or your cancellation will not be effective. If your cancellation is due to illness or injury, a certificate from a doctor of your choice must accompany your notice of cancellation to the health spa. Contact the District of Columbia Office of Consumer Affairs if you have a question as to how to calculate your obligation or your refund after cancellation.
GEORGIA
You (the buyer) have seven business days to cancel this contract. To cancel, mail or hand deliver a letter to the following address: Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614. Do not sign this contract if there are any blank spaces above. In the event optional services are offered, be sure that any options you have not selected are lined through or that it is otherwise indicated that you have not selected these options. It is recommended that you send your cancellation notice by registered or certified mail, or statutory overnight delivery, return receipt requested, in order to prove that you did cancel. If you do hand deliver your cancellation, be sure to get a signed statement from an XPO agent acknowledging your cancellation. To be effective, your cancellation must be postmarked by midnight, or hand delivered by midnight on the seventh day following the effective date of this contract and must include all contract forms and any and all other documents and evidence of your subscription previously delivered to you.
HAWAII
You, the buyer, may rescind (cancel) this contract by mailing or delivering a written notice to XPO. The notice must say that you are rescinding (cancelling) this contract and must be postmarked or delivered by midnight on the fifth (5th) business day after signing this contract, excluding Saturdays, Sundays, and state and federal holidays to Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614.
MISSISSIPPI
IF WITHIN FIVE (5) BUSINESS DAYS YOU DECIDE YOU DO NOT WISH TO REMAIN A SUBSCRIBER TO THE XPO SERVICES, YOU MAY CANCEL THIS AGREEMENT BY MAILING A NOTICE TO XPO BY MIDNIGHT OF THE FIFTH BUSINESS DAY FOLLOWING YOUR PURCHASE OF THE CONTRACT STATING YOUR DESIRE TO CANCEL THIS CONTRACT. THE WRITTEN NOTICE SHOULD BE MAILED TO THE FOLLOWING ADDRESS: Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614.
RHODE ISLAND
If you wish to cancel this contract, you may cancel in person or by mail to the seller. You must give notice, in writing, that you do not wish to be bound by the contract. This notice must be delivered or mailed before midnight of the tenth (10th) business day after the date of the contract so entered into. All cancellations must be delivered or mailed to: Xponential Fitness, LLC, 17877 Von Karman Ave., Ste. 100, Irvine, CA 92614.
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