If you're looking for warranty information, see Kabata Limited Warranty.

By purchasing a new Kabata dumbbell set or any other exercise equipment (each, a "Product") from Kabata, Inc. (“Kabata”), or from a Kabata-authorized reseller, you or a giftee are agreeing to be bound by these Terms of Sale (“Terms of Sale”). These Terms of Sale apply solely with respect to the sale of Products and do not apply to the use of Kabata's website(s), mobile application(s) or any other services made available by Kabata, including any subscription services of Kabata, which are governed by Kabata's Terms of Use.

Please read these carefully. These Terms of Sale do not apply to purchasers who have a separate written contract with Kabata. A “giftee” is an individual who received a new Kabata dumbbell set as a gift from the original purchaser; the giftee is considered the owner of the original membership attached to that Product.

THIS IS A LEGAL AGREEMENT. BY PLACING AN ORDER WITH KABATA FOR ANY PRODUCTS, YOU ARE ACCEPTING AND AGREEING TO THESE TERMS OF SALE ON BEHALF OF YOURSELF AND ANY ENTITY YOU REPRESENT IN CONNECTION WITH THE PURCHASE. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS OF SALE ON BEHALF OF YOURSELF AND ANY SUCH ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION TO PURCHASE AND USE KABATA’S PRODUCTS AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS OF SALE, YOU MUST NOT PURCHASE KABATA’S PRODUCTS.

THE SECTION TITLED "ARBITRATION AGREEMENT" BELOW CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND KABATA. AMONG OTHER THINGS, THE SECTION TITLED “ARBITRATION AGREEMENT” INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION.  SUCH SECTION ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER.  PLEASE READ THE SECTION TITLED “ARBITRATION AGREEMENT” CAREFULLY.

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN THE SECTION TITLED “ARBITRATION AGREEMENT”) WITHIN THIRTY (30) DAYS IN ACCORDANCE WITH THE SECTION BELOW TITLED “30-DAY RIGHT TO OPT OUT”: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.

The disclaimers, exclusions, and limitations of liability under these Terms of Sale will not apply to the extent prohibited by applicable law. For a full description of your legal rights you should refer to the laws applicable in your jurisdiction or consult your own legal counsel. If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that any of the limitations set out above do not apply, all remaining aspects survive.

‍

YOUR USE OF KABATA’S PRODUCT

You must be at least 15 years old to use the Product and to establish an account on the Kabata service. The Product is offered and intended only for your personal use, and not for the use or benefit of any third party. Minors who are at least 15 years old who can safely fit and use the Product may do so with parent/guardian consent and supervision and provided that their parent/guardian waives and releases Kabata for any such use. All individuals under the age of majority (a minor) must have permission to participate from a parent or legal guardian who will provide supervision. If you are a parent or legal guardian of a minor using the Product, you are subject to these Terms of Sale and responsible for that minor’s activity with the Product and their interactions with the Kabata service.

Notwithstanding anything in these Terms of Sale to the contrary, any software embedded in the Product (“Software”) is licensed (and not sold) to you and is subject to the Kabata Terms of Service. Subject to the terms of these Terms of Sale , Kabata grants to you a limited, nonexclusive, nontransferable, revocable license to use the Product’s Software, solely in executable form, solely as embedded in the Product, solely for your internal, non-commercial use in connection with your use of the Product. You may not copy, reproduce, modify, create derivative works from, translate, publish, broadcast, synchronize, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose the Software. You acknowledge that the Software contains copyrights, patents, trade secrets and/or other intellectual property (“Intellectual Property”) of Kabata, and, in order to protect such Intellectual Property, you agree not to disassemble, decompile or reverse engineer the Software nor permit any third party to do so, Kabata reserves all rights, including Intellectual Property rights and all associated goodwill, and licenses in and to the Software not expressly granted to you under these Terms of Sale.

‍

PRICING

Kabata’s Product pricing, features and the availability of the Product can change at any time without notice. Prices indicated are in U.S. dollars and we will indicate to you other applicable shipping charges and taxes prior to your purchase. Payment will be processed utilizing the credit card or other payment method (“Payment Method”) you provide, upon the earlier of the acceptance of your order request by the Merchant or six days after the date of your order request. Kabata shall collect applicable Sales Tax in addition to the payments required to be made by you hereunder. For the purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. By your purchase, you agree to indemnify and hold Kabata harmless from and against any liabilities, interest, penalties or fees arising from a failure to pay any such charges or taxes. Any services, including any subscription or membership fees, are separate from the Product purchase price, and the payment thereof are subject to Kabata's Terms of Service.

Kabata uses Shopify and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”).  If you purchase a Product, you will be required to provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider.  You agree to be bound by Shopify’s Privacy Policy (currently accessible at https://www.shopify.com/legal/privacy) and hereby consent and authorize Kabata and Shopify to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions.  Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason.  For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information.  Your card issuer may charge you an online handling fee or processing fee.  We are not responsible for this.  In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.

‍

SHIPPING

The Product is not offered or intended for sale outside of the United States. Kabata will not ship any Product outside of the United States, and you will be solely and completely responsible for any purchase or use of the Product outside of the United States. To the extent permitted by applicable law, Kabata will not accept responsibility or liability associated with any loss, damage, or other injury caused by your purchase or use of the Product outside of the United States. You are responsible for complying with all applicable laws and regulations of the country for which the Product is destined or in which the Product is used. We are not liable or responsible if you violate any such law(s).

Title to the Product and risk of loss will pass to you upon delivery of the Product to a carrier. You acknowledge that all scheduled shipment dates are estimates only. Kabata will make commercially reasonable efforts to meet the scheduled shipment dates, but in no event will Kabata be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.

Any estimated arrival or delivery date provided by Kabata is not a guarantee. Although Kabata will make commercially reasonable efforts to meet estimated delivery dates, delivery of the Product may take more or less time than estimated and Kabata disclaims any loss, damage, or injury resulting from a delay in arrival or delivery. Deliveries that are refused may be returned to us, and it may take up to 45 days for returned Products to be processed for any potential refund or replacement.

‍

RETURNS

In the event you wish to return any Product, please consult our Return Policy at: https://www.kabatafitness.com/cancellations-and-returns.

‍

THIRD PARTY SOFTWARE AND APPLICATIONS

You agree not to download and/or install any third-party software and/or applications on any Kabata hardware that are not expressly authorized by Kabata. The unauthorized downloading and/or installing of any such third-party software and/or applications is at your own risk and may void any applicable warranty, including the Kabata Limited Warranty, and Kabata disclaims all responsibility for any damage or injury that may result.

‍

REVIEWS

Our website may host user generated content that is related to reviews of certain users and purchasers. Such reviews are opinions and are not the opinion of Kabata, have not been verified by Kabata, and each user should undertake his/her own research to be satisfied concerning any specific user. You agree that Kabata is not liable for any user generated content.

‍

ARBITRATION AGREEMENT

Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Kabata and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

a. Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Kabata agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Terms of Sale and prior versions of this Terms of Sale, including claims and disputes that arose between you and us before the effective date of this Terms of Sale (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Kabata may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Kabata may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Terms of Sale as well as claims that may arise after the termination of this Terms of Sale.

b. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Kabata.  If that occurs, Kabata is committed to working with you to reach a reasonable resolution. You and Kabata agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”).  You and Kabata therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via video conference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”).  If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties.  Notice to Kabata that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@kabatafitness.com or regular mail to our offices located at 12121 Wilshire Blvd, Suite 810, Los Angeles, CA 90025. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.  In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration.  The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

c. Waiver of Jury Trial. YOU AND KABATA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  You and Kabata are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section titled “Applicability of Arbitration Agreement”.  There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

d. Waiver of Class and Other Non-Individualized Relief. YOU AND KABATA AGREE THAT, EXCEPT AS SPECIFIED IN SECTION TITLED “BATCH ARBITRATION”, EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.  ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim.  Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section titled “Batch Arbitration”.  Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Kabata agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of California.  All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Kabata from participating in a class-wide settlement of claims.

e. Rules and Forum. This Terms of Sale evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.  If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Kabata agree that either party shall have the right to finally resolve the Dispute through binding arbitration.  The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement.  The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).  The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address.  Such counsel must also sign the Request.  By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2)the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless you and Kabata otherwise agree, or the Batch Arbitration process discussed in Section title “Batch Arbitration” is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.  If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.  Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

You and Kabata agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

f. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section titled “Batch Arbitration” is triggered, the AAA will appoint the arbitrator for each batch.

g. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section titled “Waiver of Class and Other Non-Individualized Relief”, including any claim that all or part of Section titled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such Section titled “Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section titled “Batch Arbitration”, all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section titled “Batch Arbitration”.  The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

h. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).  If you or Kabata need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

i. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Kabata agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Kabata by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.  To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”).  In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.  The Administrative Arbitrator’s fees shall be paid by Kabata.

You and Kabata agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

j. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: Kabata, Inc. (attn: Kabata Legal Department) - 12121 Wilshire Blvd, Suite 810, Los Angeles, CA 90025, within thirty (30) days after first becoming subject to this Arbitration Agreement.  Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of this Terms of Sale will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

k. Invalidity, Expiration. Except as provided in Section titled “Waiver of Class or Other Non-Individualized Relief”, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Kabata as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

l. Modification. Notwithstanding any provision in this Terms of Sale to the contrary, we agree that if Kabata makes any future material change to this Arbitration Agreement, we will notify you.  Unless you reject the change within thirty (30) days of such change become effective by writing to Kabata at Kabata, Inc. (attn: Kabata Legal Department) - 12121 Wilshire Blvd, Suite 810, Los Angeles, CA 90025, your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes.  Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Terms of Sale and did not validly opt out of arbitration.  If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Terms of Sale, the provisions of this Arbitration Agreement as of the date you first accepted this Terms of Sale (or accepted any subsequent changes to this Terms of Sale) remain in full force and effect. Kabata will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Terms of Sale.

‍

WARRANTIES AND DISCLAIMERS

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THIS WEBSITE IS AT YOUR SOLE RISK, AND THE SERVICES PROVIDED HEREIN ARE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  KABATA EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE.  This Section (Warranties and Disclaimers) does not affect in any way our return policy or limited warranty for goods purchased on the website.  If for any reason you are not satisfied with a purchase of Products you make on this website, you may return the item in accordance with the terms of our return policy https://www.kabatafitness.com/cancellations-and-returns or limited warranty https://www.kabatafitness.com/kabata-warranty, as applicable.

‍

LIMITATION OF LIABILITY

Nothing in these Terms of Sale and in particular within this “Limitation of Liability” clause shall attempt to exclude liability that cannot be excluded under applicable law.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) KABATA WILL NOT BE LIABLE FOR DAMAGES FOR LOSS OF ENJOYMENT, LOSS OF PROFITS, USE OR DATA, OR OTHER INTANGIBLE LOSS, OR OTHER DAMAGES WHATSOEVER IN CONNECTION WITH THE PURCHASE, USE, INSTALLATION, REPAIR, MAINTENANCE, MODIFICATION, OR MOVEMENT OF THE PRODUCT OR PARTS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY; (B) WITHOUT LIMITING THE FOREGOING, KABATA WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR OR A THIRD PARTY’S USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING BUT NOT LIMITED TO DATA, INTERNET OR SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE PRODUCT IS TO STOP USING THE PRODUCT; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF KABATA FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO KABATA FOR THE PRODUCT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS TERMS OF SALE) ARE MADE FOR THE BENEFIT OF BOTH KABATA AND KABATA’S AFFILIATED ENTITIES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.

If you live in a jurisdiction that does not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation does not apply to you. To the extent that one or any aspect of Kabata’s limitations set out above does not apply, all remaining aspects survive. The exclusions and limitations of damages set forth above are fundamental elements of the basis of the bargain between Kabata and you.

‍

DATA PROTECTION

You can place orders for the Product through Kabata’s online store or at a Kabata-authorized reseller. When you place an order with Kabata, you will enter certain identifying information such as name, phone number, e-mail address, and shipping and billing address, so we can fulfill your order. You agree and understand that Kabata or a third-party provider may store, process, and use that information for purposes of fulfilling your order. You also agree that the information you provide is true and complete and that you will pay the price and charges identified. Kabata’s Privacy Policy provides information about how we collect, use, and disclose your personal information. By installing our apps, creating an account, viewing Products, making a purchase, or otherwise using the Kabata services, you acknowledge that we will collect, use, and disclose your personal information as described in our Privacy Policy. Collection of your data made when you purchase from a Kabata-authorized reseller is subject to their privacy policies and data collection practices, and Kabata bears no responsibility for such policies or practices.

‍

GENERAL PROVISIONS

a. Electronic Communications. The communications between you and Kabata may take place via electronic means, whether you visit the Service or send Kabata emails, or whether Kabata posts notices on the Service or communicates with you via email.  For contractual purposes, you (i) consent to receive communications from Kabata in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Kabata electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

b. Assignment. The Terms of Sale, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Kabata’s prior written consent.  Kabata may, without your consent, freely assign and transfer this Terms of Sale, including any of its rights, obligations, or licenses granted under this Terms of Sale.  Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

c. Force Majeure. Kabata shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

d. Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Service, please contact us at: support@kabatafitness.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

e. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

f. Terms of Sale Updates. When changes are made, Kabata will make a new copy of this Terms of Use and/or Supplemental Terms, as applicable, available on the Service, and we will also update the “Last Updated” date at the top of this Terms of Sale.  If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Terms of Sale to you at the email address associated with your Account.  Kabata may require you to provide consent to the updated Terms of Sale in a specified manner before further use of the Service is permitted.  IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.

g. Exclusive Venue. To the extent the parties are permitted under this Terms of Sale to initiate litigation in a court, both you and Kabata agree that all claims and disputes arising out of or relating to this Terms of Sale will be litigated exclusively in the state or federal courts located in Los Angeles County, California.

h. Governing Law. This Terms of Sale and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Terms of Sale.

i. Choice of Language. It is the express wish of the parties that this Terms of Sale and all related documents have been drawn up in English.

j. Notice. Where Kabata requires that you provide an email address, you are responsible for providing Kabata with a valid and current email address.  In the event that the email address you provide to Kabata is not valid, or for any reason is not capable of delivering to you any notices required by this Terms of Sale, Kabata’s dispatch of the email containing such notice will nonetheless constitute effective notice.  You may give notice to Kabata at the following address: Kabata, Inc. (attn: Kabata Legal Department) - 12121 Wilshire Blvd, Suite 810, Los Angeles, CA 90025.  Such notice shall be deemed given when received by Kabata by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

k. Waiver. Any waiver or failure to enforce any provision of this Terms of Sale on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

l. Severability. If any portion of this Terms of Sale is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.

m. Export Control. You may not use, export, import, or transfer the Service except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Service, and any other applicable laws.  In particular, but without limitation, the Service may not be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Service, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties.  You also will not use the Service for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Kabata are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Kabata products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

n. Entire Agreement. The Terms of Sale is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.