These Terms and Conditions are effective as of June 25, 2017.
These Terms and Conditions affect your legal rights and obligations. If you do not agree to be bound by all of these Terms and Conditions, do not access or use the Member Services.
There may be times when we offer a special feature that has its own terms and conditions that apply in addition to these Terms and Conditions. In those cases, the terms specific to the special feature control to the extent there is a conflict with these Terms and Conditions.
ARBITRATION NOTICE: EXCEPT IF YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND FITSPOT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
These Terms and Conditions (this “Agreement”) govern your use as a Fitspot Member of: (1) the Fitspot website at https://www.fitspotwellness.com (the “Website”), (2) mobile application for smartphone devices (the “App”), (3) the appointment booking platform or employer/employee portal made available through the Website and the App (the “Fitspot Platform”), (4) the payment for services made available through the App or website (the “Payment Services”), (5) any other services or features made available to Members through the Website or the App, (6) any individual or group fitness classes offered by Fitspot as a service, 7) any educational classes offered on-site or via virtual webinar, and 8) fitness assessment services offered by Fitspot (collectively, the services in (1) through (8) which you order from Fitspot, the “Member Services”).
In this Agreement, “Fitspot”, “we” or “us” mean Fitspot Wellness, Inc., a Delaware corporation, and “Member” and “you” mean any person, or company using the Member Services to receive fitness services from fitness trainers or fitness professionals (“Fitspot Trainers”) through the Website, App or via group or individual fitness classes.
We may update or revise this Agreement from time to time and it is your responsibility to check back periodically to review any updates. You are free to decide whether or not to accept a modified version of this Agreement, but accepting this Agreement, as modified, is required for you to continue using the Member Services. If you do not agree to the terms of this Agreement or any modified version of this Agreement, your sole recourse is to terminate your use of the Member Services, in which case you will no longer have access to the Member Services or your Member Account. Any use of the Member Services is subject to the version of this Agreement in effect at the time of use.
By accessing or using the Member Services or clicking “accept” or “agree” to this Agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this Agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Member Services.
IF YOU SUBSCRIBE TO CERTAIN OF OUR MEMBER SERVICES, THEN THESE TERMS AND CONDITIONS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OUR THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU DECLINE TO RENEW YOUR SUBSCRIPTION IN ACCORDANCE WITH THESE TERMS AND CONDITIONS. FITSPOT MAKES NO GUARANTEES OR REPRESENTATIONS REGARDING THE AVAILABILITY OF APPOINTMENTS FOR ANY PARTICULAR FITSPOT TRAINER OR ANY PHYSICIAN OR HEALTHCARE PROVIDER, TO MEMBERS OF THIS SITE. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL COMMUNICATIONS MADE THROUGH THE MEMBER SERVICES ARE AT YOUR SOLE RISK AND THAT FITSPOT DOES NOT MAKE ANY GUARANTEES REGARDING THE AVAILABILITY OF ANY FITSPOT FITNESS INSTRUCTORS. HEALTHCARE PROVIDERS.
1. GENERAL DESCRIPTION OF FITSPOT SERVICES
Fitspot is a marketplace and service where users who are seeking group fitness professionals and individual fitness professionals in any number of fitness disciplines can schedule these services at their location with the specific expertise they are seeking.
The Fitspot technology platform allows users to search and select the appropriate trainer for their needs, schedule an appointment at a mutually agreeable time and place and pay for Member Services directly through the platform. Likewise, fitness professionals and other service providers can post class types and their schedule for view by Fitspot users and then collect payment directly through the platform. The Fitspot technology platform also allows Fitspot Members to track individual, employee and collective company wellness data.
The Website, App and Member Services can only be used to offer personal training, group training, fitness services, fitness tracking, fitness assessments, educational classes/ webinars and corporate wellness and for no other purpose. Fitspot is a platform designed to serve as a conduit to connect users seeking individual and group fitness professionals with fitness professionals and as such Fitspot Trainers are not employees of Fitspot and Fitspot is not hiring a Fitspot Trainer for any Fitspot Member.
Fitspot also provides an online portal that is designed to enable employers who offer employer-sponsored benefits (each, an “Employer”) to Members, who are their employees to engage us to use the Member Services. The Member Services offer corporate wellness initiatives, including biometric screening, on-site wellness programs, and group fitness classes.
2. BASIC TERMS
- You must be at least 18 years old to use the Member Services and any use by anyone under 18 years old is strictly prohibited.
- If you are invited to participate in the Member Services by your Employer, you must register using your corporate e-mail address where you received the invitation to join.
- You are responsible for any activity that occurs through your account and you agree you will not sell, transfer, license or assign your account, followers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or clients, Fitspot prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Fitspot upon registration and at all other times will be true, accurate, current and complete and you agree to update your information as necessary to maintain its truth and accuracy.
- You agree that you will not solicit, collect or use the login credentials of other Fitspot Members or Trainers.
- You are responsible for keeping your password secret and secure.
- You may not use the Member Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Member Services), including but not limited to, copyright laws. You recognize that as an Employer, your behavior and interactions with the end-users of the Member Services, and must conform to best practices and applicable laws, including HIPAA.
- You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, works of authorship, applications, links and other content or materials (collectively, “Content”) that you submit, post or display on or via the Member Services.
- You must not change, modify, adapt or alter the Member Services or change, modify or alter another website so as to falsely imply that it is associated with the Member Services or Fitspot.
- You must not access Fitspot’s private API without the written consent of Fitspot.
- You must not use domain names or web URLs in your username without prior written consent from Fitspot.
- You must not interfere or disrupt the Member Services or servers or networks connected to the Member Services, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any page is rendered or displayed in a user’s browser or device.
- You must not create accounts with the Member Services through unauthorized means, including but not limited to, by using an automated device, script, bot, spider, crawler or scraper.
- You must not attempt to restrict another user from using or enjoying the Member Services and you must not encourage or facilitate violations of these Terms and Conditions.
- Violation of this Agreement may, in Fitspot’s sole discretion, result in termination of your Fitspot account, which we reserve the right to do in our sole and absolute discretion.
- You understand and agree that Fitspot cannot and will not be responsible for the Content posted on the Member Services and you use the Member Services at your own risk. If you violate the letter or spirit of these Terms and Conditions, or otherwise create risk or possible legal exposure for Fitspot, we can stop providing all or part of the Member Services to you.
3. FITSPOT PLATFORM
Fitspot provides the Fitspot Platform to Employers and Members for the purpose of assisting Members in securing Fitspot Trainers to provide desired fitness services, corporate wellness initiatives, tracking employee/employer data and enabling communication between participating Members and Fitspot Trainers. Subject to the terms and conditions of this Agreement, Fitspot grants you a non-exclusive, non-transferable license to access the features and functions on the Site for your own personal purposes (or if you are an Employer, in connection with your corporate wellness program) while visiting the Site, solely for the purposes of obtaining access, or authorizing employee access, to Member Services available via the Site in accordance with this Agreement. Fitspot reserves the right at any time and for any reason it deems sufficient, in its sole discretion, to terminate this Agreement, revoke the licenses granted hereunder, to deny you future access to the Site, or to impose conditions on your future access, including but not limited to requiring payment of subscription or license fees as a prerequisite for future access.
In response to an Employer or Member’s request to book a Fitspot Trainer or Member Service through the Website or App, Fitspot directly notifies the Fitspot Trainer or applicable service provider of the booking request through the Fitspot Platform. A Fitspot Trainer or other service provider may accept or reject a Member’s booking request in his or her sole discretion. Fitspot Trainers or other service providers at no time shall be required to accept a Member’s booking request.
Each Fitspot Trainer or other service providers shall be free in his or her sole discretion to determine at what times and on what dates he or she shall make himself or herself available on the Fitspot Platform to accept booking requests from Members. Fitspot maintains the discretion to staff Fitspot Trainers that it deems a best fit for the requested individual or group class.
Fitspot requires each Fitspot Trainer to provide and maintain valid physical trainer certifications and/or insurance while providing Fitspot Services. However, Fitspot does not guarantee or warrant, and makes no representations regarding, the accuracy, reliability, quality or suitability of such Fitspot Trainers. WHEN INTERACTING WITH FITSPOT TRAINERS, YOU SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT YOUR PERSONAL SAFETY AND PROPERTY, JUST AS YOU WOULD WHEN INTERACTING WITH OTHER PERSONS WHOM YOU DON’T KNOW. By using the Services, you agree to hold Fitspot free from the responsibility for any liability or damage that might arise out of the transaction involved. You understand and agree that Fitspot has no control over and is not responsible for the acts or omissions of any Members or Fitspot Trainers on or off the Site.
4. PAYMENT MECHANICS AND TERMS
You, as an Employer or a Member, agree to pay those amounts for the Member Services as are listed on the Site which may be updated from time to time, or with respect to Employers, as otherwise communicated to you by Fitspot in writing. Fitspot will be responsible for remitting the appropriate fees for the Member Services to the applicable Fitspot Trainer or service provider. As an Employer, the fees owed will depend upon the bundle of services purchased. This will include the number of Members the Employer registers or identifies as a Member of the Member Services. In the event Employer exceeds the number of allowable Members, Employer will automatically be converted to the next tier of fees and will be automatically charged such higher fees upon notice to Employer.
In order to use the Mobile Payment Services, you must provide credit card or debit card information for at least one operational and valid credit card or debit card through the App. You may add, delete, and edit the credit card or debit card information you have provided from time to time through the App. All charges are due immediately and payment will be facilitated by Fitspot using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Fitspot may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available. When a Member books an appointment via credit card, a temporary authorization may be placed on the authorized credit card. Upon confirmation to Fitspot that an appointment with a Member has been completed, such Member’s credit card or debit card is immediately charged in full for the service.
Payment Services offered to Employers and corporate members may be processed via credit card or ACH transfer. All charges are due immediately and payment will be facilitated by Fitspot using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Fitspot may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available.
You will be responsible for payment of the applicable fee for any Member Services offered on a subscription basis (each, a “Service Subscription Fee”) at the time you create your Account and select your subscription package (each, a “Service Commencement Date”). Except as set forth in this Agreement, all fees for the Member Services are non-refundable. No contract will exist between you and us for the Services until we accept your order by a confirmatory e-mail, SNS/MMS message, or other written confirmation.
If you, as an Employer or Member, subscribe to any component of the Member Services on a recurring basis, your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at our then-current price for such subscription. You agree that your account will be subject to this automatic renewal feature unless you cancel your subscription at any time prior to the Renewal Commencement Date by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page, or if you are an Employer, emailing us at firstname.lastname@example.org. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please log in and go to the “Change/Cancel Membership” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize us to charge you’re the Third Party Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if we do not receive payment from the Third Party Provider, (i) you agree to pay all amounts due on your account upon demand, and/or (ii) you agree that we may either terminate or suspend your subscription and continue to attempt to charge your Third Party Provider until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
In the event a Member desires to cancel an appointment, such cancellation will be at no charge (or debit of credits) to the Member if canceled within 48 hours of a confirmed booking and this appointment can be rescheduled within the tenure of the subscription term. If however, a Member initially books the appointment within 48 hours of the appointment, then the Member will be charged unless such appointment is canceled within the first 15 minutes of such booking (the “Cancellation Periods”). If a Member does not cancel a confirmed appointment within the applicable Cancellation Period, 100% of the cost of the services will be charged as a cancellation fee or in the case of a subscription the session credit will be deemed “used”.
Once a session is confirmed completed by the Trainer and the fee collected by Fitspot, Fitspot charges a fee to fitness trainers (the “Admin Fee”) in Fitspot’s sole and absolute discretion. Fitspot will remit the amount of payment by the Member, less the Admin Fee to the Fitspot Trainer using the account information provided by the Fitspot Trainer. Any refunds made to a Member will be deducted from any amounts paid to the Fitspot Trainer. Fitspot Trainers may not accept payment from members associated with Fitspot and doing so will result in termination from Fitspot.
In Fitspot’s sole and absolute discretion, refunds or credits may be granted in extenuating circumstances, as a result of specific refund guarantee promotions, or to correct any errors made by Fitspot. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the client shall be responsible for payment of all taxes, levies, or duties associated with his or her purchases hereunder, excluding only United States (federal or state) taxes. You may not pay your Fitspot Trainer or arrange for training sessions with your Fitspot Trainer outside of the Fitspot platform and doing so will result in termination of the Member Services.
6. MEMBER ACCOUNT
You are required to register and create a Fitspot Member account with Fitspot through a services contract, the Website or App (“Fitspot Member Account”) in order to receive any of the Member Services. When registering for a Fitspot Member Account, you must provide true, accurate, current, and complete data about yourself or company (“Fitspot Member Registration Data”). You also agree to promptly update the Fitspot Member Registration Data to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your Fitspot Member Account and the information in your Fitspot Member Account, and, except as otherwise required by applicable law, you are solely responsible for all use of your Fitspot Member Account, whether or not authorized by you. You agree to immediately notify Fitspot of any unauthorized use of your Fitspot Member Account or any other breach of security related to your use of the Member Services.
7. MOBILE; LOCATION SERVICES
Use of the Member Services requires Internet access through your mobile device. You are responsible for all mobile carrier charges resulting from your use of the Member Services, including from any notifications provided by the Member Services. Fitspot does not guarantee that the Member Services will be compatible with all devices or will be supported by all mobile carriers.
8. FITSPOT CONTENT
The features, information, and materials provided and depicted through the Member Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Member Services (collectively, the “Fitspot Content”) are provided to Members by Fitspot solely to support the Member’s permitted use of the Member Services. The Fitspot Content may be modified from time to time by us in our sole discretion. Except as expressly set forth herein, no license is granted to Members for any other purpose, and any other use of the Members Services or the Fitspot Content by Members shall constitute a material breach of this Agreement. Fitspot retains all rights in the Members Services and Fitspot Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of Fitspot or any third party is granted under this Agreement.
Subject to the terms and conditions of this Agreement, Fitspot grants Fitspot Members a non-exclusive, non-transferable, revocable license to use the Fitspot Application, in object code form only, on a Fitspot Member’s compatible mobile devices, solely to support the Fitspot Member’s permitted use of the Fitspot Member Services.
9. MEMBER CONTENT
You own all content and information you post or share using the Member Services (referred to as “Member Content”). You hereby grant Fitspot and its Affiliates a non-exclusive, perpetual, fully paid, royalty free license to use, copy, or display your Member Content in connection with the Member Services throughout the world in any media now known or hereafter developed. We may display advertisements in connection with your Member Content or on pages where your Member Content may be viewed by you or others and we may use your Member Content to advertise and promote Fitspot, any of the Member Services or any of our Affiliates or third-parties with whom we are partnered.
You represent and warrant that: (i) you own or otherwise have all necessary rights to your Member Content; (ii) you have paid and will pay in full any fees or other payments that may be related to your use of the Member Content; and (iii) your Member Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.
We may refuse to accept or transmit any Member Content. We may remove Member Content from the Member Services for any reason in our sole and absolute discretion.
Other than Member Content, we own or license all of the other content on the site, including, but not limited to the Fitspot Content.
10. MEMBER REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
You represent and warrant: (1) the accuracy and truthfulness of all information you provide to Fitspot for uploading to the Website and App or otherwise, and (2) no information you upload to the Website or App shall infringe any third-party rights (including, without limitation, intellectual property rights and rights of privacy or publicity).
You will indemnify, hold harmless, and (at Fitspot’s request) defend Fitspot, and its representatives, agents, directors, managers, officers, employees, and shareholders (collectively, the “Fitspot Parties”) from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees of any kind (including reasonable attorneys’ fees and legal costs) (collectively “Claims”), arising from, relating to resulting from a) any information (including your Content or any other content) that you or anyone using your account submit, post, or transmit on or through the Member Services; (b) the use of the Member Services by you or anyone using your account; (c) the violation of this Agreement by you or anyone using your account; or (d) the violation of any rights of any third party, including intellectual property, privacy, publicity, or other proprietary rights by you or anyone using your account (2) any Claim made by a Fitspot Trainer or gym against the Fitspot Parties directly or indirectly or allegedly arising out of or relating to the acts or omissions of a Member receiving fitness services from a Fitspot Trainer, or (3) any breach or alleged breach by you of this Agreement. Fitspot reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. If we do assume the defense of such a matter, you will reasonably cooperate with Fitspot in such defense.
11. DISCLAIMERS AND LIMITATION OF LIABILITY
YOU UNDERSTAND THAT YOUR — USE OF THE MEMBER SERVICES IS AT YOUR OWN RISK. THE MEMBER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FITSPOT AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (REFERRED TO COLLECTIVELY AS “AFFILIATES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE WEBSITE, APP AND MEMBER SERVICES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR — USE OR PURPOSE, AND NON-INFRINGEMENT).
FITSPOT AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE WEBSITE, APP OR MEMBER SERVICES (INCLUDING, WITHOUT LIMITATION, ANY RECOMMENDATIONS OR OTHER CONTENT AVAILABLE ON OR THROUGH THE MEMBER SERVICES, OR THE CONTENT OF ANY WEBSITES OR RESOURCES LINKED TO THE SITE OR SERVICES. FITSPOT AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (B) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR — USE OF THE SITE OR SERVICES; (C) ANY UNAUTHORIZED ACCESS TO OR — USE OF OUR SERVERS OR OF ANY PERSONAL OR FINANCIAL INFORMATION; (D) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (E) ANY COMPUTER VIR– USES OR MALICIOUS CODE THAT MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES; OR (F) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE — USE OF ANY FUNCTIONALITY OR CONTENT POSTED, E-MAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE OR SERVICES.
FITSPOT AND ITS AFFILIATES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCT OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY CORPORATE WELLNESS INITIATIVES OR SERVICES OFFERED BY FITNESS TRAINERS, SERVICE PROVIDERS, PAYMENT SERVICES, RECOMMENDED, ADVERTISED, OR OFFERED ON OR THROUGH THE SITE OR SERVICES OR ANY LINKED WEBSITE.
YOU ARE SOLELY RESPONSIBLE FOR YOUR INTERACTIONS WITH OTHER — USERS (INCLUDING BOTH CLIENTS AND FITNESS TRAINERS). TO THE MAXIMUM EXTENT PERMITTED BY LAW IN NO EVENT SHALL THE FITSPOT PARTIES BE LIABLE FOR ANY INJURIES, LOSSES, CLAIMS, OR DIRECT DAMAGES OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHICH ARISE OUT OF OR ARE ANY WAY CONNECTED WITH (1) THIS AGREEMENT, (2) ANY — USE OF THE MEMBER SERVICES BY THE MEMBER, (3) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE — USE OR INABILITY TO — USE ANY COMPONENT OF THE FITSPOT PORTAL) OR (4) A FITSPOT TRAINER’S ACTS OR OMISSIONS AT A MEMBER’S COMPANY, RESIDENCE OR OTHER LOCATION WHETHER RELATED TO THE FITSPOT TRAINER’S PROVISION OF FITNESS SERVICES TO A MEMBER OR OTHERWISE.
FITSPOT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, OR INDEMNITIES, EXPRESS OR IMPLIED IN RESPECT OF THE MEMBER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO THE INFORMATION PROVIDED ABOUT FITSPOT TRAINERS AND THE ACTS OR OMISSIONS OF FITSPOT TRAINERS.
THE QUALITY OF THE FITSPOT TRAINER SERVICES OR OTHER MEMBER SERVICES MADE AVAILABLE BY THIRD PARTY SERVICE PROVIDERS IS ENTIRELY THE RESPONSIBILITY OF THE FITSPOT TRAINER OR SERVICE PROVIDER WHO PROVIDES SUCH FITNESS SERVICES OR OTHER MEMBER SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE SERVICES OF A FITSPOT TRAINER OR OTHER SERVICE PROVIDER, YOU AND/OR YOUR EMPLOYEES MAY BE EXPOSED TO FITNESS SERVICES THAT ARE POTENTIALLY DANGEROUS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOUR — USE OF THE MEMBER SERVICES AND BOOKING OF A FITSPOT TRAINER IS AT YOUR OWN RISK.
YOU ACKNOWLEDGE THAT YOUR RELIANCE ON ANY INFORMATION PROVIDED BY FITSPOT OR BY ANY FITSPOT TRAINER OR ANY OTHER FITSPOT SERVICE PROVIDER TO YOU IS SOLELY AT YOUR OWN RISK AND YOU ASSUME FULL RESPONSIBILITY FOR ALL RISK ASSOCIATED THEREWITH, AS ALLOWABLE TO THE EXTENT OF THE LAW.
ALTHOUGH FITSPOT PROVIDES INFORMATION ABOUT FITSPOT TRAINERS, FITSPOT DOES NOT PROVIDE THE SERVICES RENDERED BY FITSPOT TRAINERS. FITSPOT MAY REQUEST BACKGROUND INFORMATION OF ITS FITSPOT TRAINERS OR OTHER PARTNERS OR THIRD PARTY SERVICE PROVIDERS, BUT FITSPOT DOES NOT AND CANNOT GUARANTEE THE ACCURACY OR COMPLETENESS OF ANY SUCH INFORMATION-GATHERING OR THAT A PARTICULAR FITSPOT TRAINER IS ADEQUATELY QUALIFIED TO PERFORM ANY GIVEN SERVICE. YOU UNDERSTAND THAT FITSPOT MAY NOT CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS ON OR ANY OTHER SCREENING OF CLIENTS OR FITNESS TRAINERS. FITSPOT ALSO MAY NOT INQUIRE INTO THE BACKGROUNDS OF ALL CLIENTS OR FITNESS TRAINERS OR ATTEMPT TO VERIFY THE STATEMENTS OF CLIENTS OR FITNESS TRAINERS. FITSPOT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF CLIENTS OR FITNESS TRAINERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE CLIENTS OR FITNESS TRAINERS. FITSPOT RESERVES THE RIGHT TO CONDUCT ANY CRIMINAL BACKGROUND CHECK OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), AT ANY TIME AND USING AVAILABLE PUBLIC RECORDS.
THE INFORMATION PRESENTED OR CONTAINED IN THE SITE OR PROVIDED THROUGH THE MEMBER SERVICES IS PRESENTED FOR THE PURPOSE OF EDUCATING YOU AND/OR YOUR EMPLOYEES ON GENERAL FITNESS AND RELATED ISSUES AND TOPICS. NOTHING CONTAINED IN THE SITE OR THE CONTENT IS INTENDED TO BE INSTRUCTIONAL FOR MEDICAL DIAGNOSIS OR TREATMENT. THE INFORMATION AVAILABLE VIA THE SITE OR THE SERVICES IS SOLELY FOR INFORMATIONAL PURPOSES AND SHOULD IN NO WAY BE CONSIDERED COMPLETE, ACCURATE, NOR SHOULD IT BE RELIED ON TO SUGGEST A COURSE OF TREATMENT FOR YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES. CONTENT SHOULD NOT BE — USED IN PLACE OF A VISIT, CALL, CONSULTATION OR THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER. SHOULD YOU HAVE ANY HEALTH CARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER PROMPTLY. ALWAYS CONSULT WITH YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER BEFORE EMBARKING ON A NEW TREATMENT, DIET OR FITNESS PROGRAM. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECA– USE OF SOMETHING YOU HAVE READ ON THE SITE. THE CONTENT, INCLUDING EACH ARTICLE PROVIDED THROUGH THE SITE AND SERVICES, IS FOR EDUCATIONAL PURPOSES ONLY.
FITSPOT RECOMMENDS THAT YOU CONSULT A PHYSICIAN BEFORE BEGINNING ANY EXERCISE PROGRAM. FITSPOT IS NOT A LICENSED MEDICAL CARE PROVIDER. YOU SHOULD UNDERSTAND THAT PARTICIPATING IN ANY EXERCISE PROGRAM CAN RESULT IN PHYSICAL INJURY AND YOU AGREE TO DO SO AT YOUR OWN RISK. THE FINDINGS AND OPINIONS OF AUTHORS EXPRESSED HEREIN ARE THOSE OF THE AUTHOR AND DO NOT NECESSARILY STATE OR REFLECT THOSE OF FITSPOT.
THE INFORMATION CONTAINED IN THE SITE IS COMPILED FROM A VARIETY OF SOURCES (“INFORMATION PROVIDERS”). NEITHER FITSPOT NOR ANY INFORMATION PROVIDERS DIRECTLY OR INDIRECTLY PRACTICE MEDICINE OR DISPENSE MEDICAL SERVICES AS PART OF THE SITE. THE SITE IS NOT A SUBSTITUTION FOR THE SERVICES OF A PHYSICIAN, A HEALTH PROVIDER, OR ANY TRAINED HEALTH PROFESSIONAL. OUR SITE DOES NOT ALLOW MEDICAL ADVICE, EMOTIONAL ADVICE, DIETARY ADVICE, OR PERSONAL ADVICE OF ANY KIND. THESE CONCERNS SHOULD BE ADDRESSED AND DISCUSSED WITH YOUR PHYSICIAN OR OTHER HEALTH CARE PROVIDER. THE FOREGOING DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent FITSPOT may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of FITSPOT’s liability will be the minimum permitted under such law.
You and Fitspot understand and agree that the disclaimers, exclusions, and limitations set forth herein are essential elements of this Agreement and that they represent a reasonable allocation of risk. In particular, you understand that Fitspot would be unable to make the Member Services available to you except on these terms and agree that this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
EXCEPT AS MAY BE OTHERWISE AGREED IN WRITING BETWEEN YOU AND FITSPOT, IN NO EVENT WILL FITSPOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THE — USE OR INABILITY TO — USE MEMBER SERVICES, INCLUDING THE FITSPOT PLATFORM, OR FOR ANY LOSS OF — USE, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST DATA, OR OTHER LOSSES, EVEN IF FITSPOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THE ABOVE LIMITATION IS NOT ENFORCEABLE IN WHOLE OR IN PART FOR ANY REASON, FITSPOT SHALL IN NO EVENT BE LIABLE ON ANY GROUND FOR MORE THAN TEN DOLLARS ($10.00 USD).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and Fitspot shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively, the “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Fitspot must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR FITSPOT MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Fitspot will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) Fitspot also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.
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 the following address: Fitspot, (932 N. Alfred Street, Los Angeles, CA 90069 or email@example.com), within 30 days after first becoming subject to this arbitration agreement. Your notice must include your name and address, your Fitspot username (if any), your Employer, as applicable, the email address you used to set up your Fitspot 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, the arbitration agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreement that you may currently have, or may enter into the future, with us.
Notwithstanding the foregoing, either you or Fitspot may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Los Angeles, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Los Angeles, California in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Los Angeles, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Fitspot shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Los Angeles, California.
For more information on AAA, the Rules and Procedures, or the process for filing an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
14. CHANGES TO THE MEMBER SERVICES
Fitspot reserves the right, in its sole discretion, to modify the Member Services and the pricing structure for the provision of such services from time to time and without notice, including, without limitation, by removing, adding or modifying portions of the Service, Website and App. Fitspot shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Member Services. Continued use of the Member Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Member Services, including the pricing structure in relation thereto.
15. COPYRIGHT POLICY
Notice of Copyright Infringement
We respect the intellectual property rights of others. Please notify us in writing, by e-mail or mail to our designated agent listed below, if you believe that a user of the Site or Services has infringed your intellectual property rights. We provide this policy pursuant to Section 512 of the Copyright Revision Act, as enacted through the Digital Millennium Copyright Act (“DMCA”).
To be effective the notification should include: (i) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; identification of the claimed infringing material and information reasonably sufficient to permit Fitspot to locate the material on the Member Services; (ii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an e-mail address; (iii) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (iv) a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (v) your physical or electronic signature.
You acknowledge and agree that upon receipt and notice of a claim of infringement, we may immediately remove the identified materials from the Member Services without liability.
Counter-Notice by Accused User
If we have taken down your materials due to suspicion of copyright infringement, you may dispute the alleged infringement by sending a written communication by e-mail or mail to our designated agent below. That written communication should include the following: (i) your physical or electronic signature; (ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; (iv) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and (v) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which such address is located, or if your address is outside of the United States, the United States District Court for the Southern District of California, and that you will accept service of process from the person who provided notification of copyright infringement or an agent of such person.
Please send all notices under the above copyright infringement policies by e-mail or mail to the following office, designated as Fitspot’s receipt of notifications of claimed infringement:
Via email to:
By mail to:
1333 2nd St, Santa Monica, CA 90401
Attn: David Young
Please do not send notices or inquiries about anything other than alleged copyright infringement to our Agent for Notice.
Your account will be terminated if, in our discretion, you are determined to be a repeat infringer. Repeat infringers are users who have been the subject of more than one valid takedown request that has not been successfully rebutted.
16. ADDITIONAL TERMS
The Member Services and Fitspot Content are offered solely for Member’s personal or company use for the purposes described in this Agreement. Any and all other uses are prohibited. Fitspot expressly reserves all its rights and remedies under applicable state and federal laws. Fitspot reserves the right, in its sole discretion, to refuse service, terminate Member Accounts, remove or edit content, cancel bookings, or deny access to the Member Services. You agree not to (and not to allow any third party to): (1) use any robot, spider, scraper, or other automatic or manual device, process, or means to access the Member Services or copy any Fitspot Content, except as expressly authorized by Fitspot; (2) utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Member Services; (3) use the Member Services or Fitspot Content for any illegal purpose; or (4) publicly disseminate information regarding the performance of the Member Services or Fitspot Content.
Fitspot may suspend your ability to use all or any element of the Member Services or may terminate this Agreement effective immediately, without notice or explanation. Without limiting the foregoing, Fitspot may suspend your access to the Member Services if we believe you to be in violation of any part of this Agreement. After any suspension or termination, you may or may not be granted permission to use the Member Services or re-establish a Member Account. You agree that Fitspot shall not be liable to you for any termination of this Agreement or for any effects of any termination of this Agreement. You are always free to discontinue your use of the Member Services at any time. You understand that any termination of your Member Account may involve deletion of any content stored in your Member Account for which Fitspot will have no liability whatsoever.
Under no circumstances will Fitspot be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond its reasonable control. This Agreement is made under and shall be governed by and construed in accordance with 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. You agree that any action of whatever nature arising from or relating to these Terms, the Site, or any Services will be filed only in the state or federal courts located in Los Angeles County, California. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision (or portion thereof) notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned, or delegated in any manner by operation of law or otherwise by Members, but may be freely transferred, assigned, or delegated by Fitspot.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.