Terms of Service
These Terms of Service (this "Terms") is a binding agreement between you (collectively, together with each and every person whom you allow access to the Platform (defined below) using your Platform User ID or PIN, "User," "you," or any pronoun similar to "you") and Fit Concierge, LLC, a California limited liability company ("Company," "we," "us," "our," or such similar terms). This Agreement governs your use of the Company's "Fit Concierge" mobile application and platform on your Mobile Device or via www.Fit-Concierge.com (including all related programming and documentation, the "Platform").
Our Platform is an interactive user experience which allows for fitness trainers and service providers (as the case may be, "Service Providers") to market to, and connect with, Users interested in Service Providers' services (as the case may be, "Service Recipients"). Each transaction between a Service Provider and Service Recipient is an independent transaction between such parties, and not a transaction among such parties and the Company. We will however charge Service Providers and Service Recipients fees for use of the Platform, as described more in this Agreement. The Company is not in the business of providing the services of any Service Provider, and the Platform is intended to be a platform through which Service Providers may market their respective services using the Platform's user interface and features, and through which Service Recipients may use the user interface and features to select Service Providers. The Platform will assist Service Recipients and Service Providers in matching, by, among other things, allowing the parties to sort by geographic locations, services offered and requested, and certifications or credentials of Service Providers, however, the Platform does not purport to make any mutual selection on behalf of the parties, and the Company is not authorized on behalf of either a Service Provider or Service Recipient to enter into an agreement between such parties.
BY CLICKING THE "AGREE" BUTTON, DOWNLOADING OUR MOBILE APPLICATION, OR OTHERWISE ACCESSING THE PLATFORM OR THE GOODS OR SERVICES DELIVERED OR PROVIDED BY THE PLATFORM, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, USE OR OTHERWISE ACCESS THE PLATFORM AND DELETE ANY INSTANCE OF IT OR ITS CONTENT FROM YOUR MOBILE DEVICE.
By creating a Company account for your minor child or ward, you hereby agree and consent to the Agreement on the minor's behalf, and you hereby assume any and all responsibility and liability for the minor's use of the Platform. You will be responsible for any breach of the above representations, warranties, covenants, or agreements in this Agreement or any attempt of the minor to disaffirm this Agreement. Furthermore, you hereby represent that you are fully authorized to execute this Agreement on behalf of yourself and all other parents or legal guardians of the minor.
1. Content and License Terms. "Content" includes any text, message, data, photograph, image, graphic, information, audio/video files or other material in, by, through or in connection with the Platform and the related trademarks, service marks, logos, insignias and other intellectual property contained therein. As between you and Company, Content in the Platform, is owned by or licensed to Company, subject to copyright and other intellectual property rights under the law.
1.1 Subject to the terms of this Agreement, Company grants you a limited, revocable, non-exclusive and nontransferable license to:
1.1.1 download, install and use the Platform and access Content for your personal, non-commercial use on a Mobile Device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Platform's documentation; and
1.1.2 access, stream, download and use on a Mobile Device, or other personal computing device, the Website Content and Services (as defined in Section 7) made available in or otherwise accessible in or through the Platform, strictly in accordance with this Agreement and the Website Policies applicable to such Website Content and Services as set forth in Section 7.
1.2 Content, including any User Content (defined below), and services provided in or through the Platform are provided to you "as is" in connection with your use of the Platform. Except as expressly stated in this Agreement, you are not granted any right or license, by implication, estoppel, or otherwise, in or to any patent, service mark, trademark, copyright, or proprietary right of Company or any third party, in connection with your use of the Platform and any Content provided by Company or any third party through or in the Platform. Elements of the Platform, including page headers, custom graphics, logos, sounds, images and button icons, are protected by trade dress and other state and federal laws and may not be copied or imitated in whole or in part. Violation of this Agreement, including without limitation modification or use of Content in the Platform for any purpose other than those permitted in this Agreement, shall result in the automatic termination, without notice to you, of your license to access and use the Platform, and also may constitute the infringement of Company's copyright, service mark, trademark and/or other rights. You shall not attempt to access any other of Company's systems, programs or data that are not made available for public use.
1.3 Company has and will retain sole control over the operation, provision, maintenance and management of the Platform. User has and will retain sole control over the operation, maintenance and management of, and all access to and use of, User's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by User or through the use of third-party services ("User Systems"), and sole responsibility for all access to and use of the Platform and services delivered thereby (the "Services") by any person by or through the User Systems or any other means controlled by User, including any: (i) information, instructions or materials provided by any of them to the Platform, Services, or Company; (ii) results obtained from any use of the Platform or Services; and (iii) conclusions, decisions or actions based on such use.
1.4 Company makes no representation or warranty regarding how and when the Services will deliver any specific content, and there is no guarantee that you will be able to properly view inputted data through the Platform. It is Company's goal to deliver unmatched content and quality, however, please be advised that Company cannot guarantee that technical difficulties will not occur during the download and/or streaming of the Services.
2. License Restrictions. User may not and agrees User will not:
(a) Copy, reproduce, republish, upload, post, transmit, or distribute in any way the Platform or any Content without Company's written permission, other than as expressly allowed by Company hereunder.
(b) Modify, adapt, sub-license, translate, sell, reverse engineer, decompile or disassemble any portion of the Platform or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Platform.
(c) Remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform, including any copy thereof.
(d) Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Platform or any features or functionality of the Platform, to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time.
(e) Circumvent, disable or otherwise interfere with security-related features of the Platform or features that prevent or restrict use or copying of any Content, or enforce limitations on use of the Platform or Content.
(f) Transmit through, in or by the Platform, any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.
(g) Use any data scraping, mining, robots, spiders, or similar data gathering and extraction methods within the Platform or in any way reproduce or circumvent the navigational structure or presentation of the Platform or its Contents without Company's prior written consent.
(h) Use any "hidden text" without Company's express written consent.
(i) Take any action that imposes or may impose (in Company's sole discretion) an unreasonable or disproportionately large load on Company's (or Company's third-party providers') infrastructure.
(j) Duplicate or create multiple user accounts in an attempt to circumvent Company's security and privacy measures and policies.
(k) "Frame" or "mirror" any part of the Platform.
(m) Use the Platform or Content for any unlawful purpose.
(n) Use or make available the Platform as an Application Service Provider (ASP).
(o) Post User Content in or in or through the Platform that violates the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity.
(p) Use the Platform for any unlawful purpose or any purpose which may violate the terms upon which Third-Party Materials are sublicensed to you hereunder.
(q) Post Content in or through the Platform that includes any "Prohibited Content." "Prohibited Content" includes, but is not limited to, any Content that: (i) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (ii) is bigoted, hateful, or racially or otherwise offensive; (iii) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; (iv) is harmful or can reasonably be expected to be harmful to any person or entity; (v) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them; (vi) infringes or violates any right of a third party including right of privacy, right of publicity, copyright, patent, trademark, service mark, trade secret or other proprietary or contractual rights; (vii) is commercial, business-related or solicits or advertises or offers to sell any products or services, whether or not for profit; (viii) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Platform or any connected network, or otherwise interferes with any person or entity's use or enjoyment of the Platform; (ix) does not generally pertain to the designated topic or theme of the relevant application, message board, public forum or blog; (x) violates any specific restrictions applicable to the application, message board, public forum or blog; or (xi) is antisocial, disruptive, or destructive, including "spamming," "flooding," and "trolling" as those terms are commonly understood and used in connection with the Internet.
3.1 User is responsible for identifying and authenticating all persons using or with access to User's User ID or PIN (each an "Authorized User"), for approving access by such users to the Platform and Services, for controlling against unauthorized access by such users or any other party through User Systems, and for maintaining the confidentiality of usernames, passwords and account information. The Company is not responsible for any harm caused by users of an User's account, including individuals who were not authorized to have access to such account. User is responsible for all activities that occur under such User's usernames, passwords or accounts or as a result of such User's or User's Authorized Users' access to the Platform Services, and agree to notify the Company immediately of any unauthorized use.
3.2 User has and will retain sole responsibility for: (i) all of User's data, including its content and use; (ii) all information, instructions and materials provided by or on behalf of User or any Authorized User in connection with the Platform or Services; (iii) User Systems; (iv) the security and use of User's and its Authorized Users' access credentials; and (v) all access to and use of the Services and Company Materials directly or indirectly by or through the User Systems or its or its Authorized Users' access credentials, with or without User's knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
3.3 User shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer the distribution and use of all User and Authorized User access credentials and protect against any unauthorized access to or use of the Platform or Services; and (ii) control the content and use of User's data, including the uploading or other provision of User's data for processing by the Platform.
4. Reservation of Rights. You acknowledge and agree that the Platform is provided under license, and not sold, to you. You do not acquire any ownership interest in the Platform under this Agreement, or any other rights thereto other than to use the Platform in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company and its licensors and service providers reserve and shall retain their entire right, title and interest in and to the Platform, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Provided that each such person agrees to be bound by the terms of this Agreement, you may designate only the number of Authorized Users as set forth for your particular subscription or plan. Each Authorized User shall create his or her own User ID and PIN in accordance with the above terms of this Section 5.
7. Website Content and Services.
7.2 The Website Content and Services are based in the state of California in the United States access and use of the Website Content and Services is intended for the use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Website Content and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Website Content and Services from outside the United States, you are responsible for compliance with local laws.
8. Limitations on Use.
8.1 You acknowledge that Company may establish limits concerning use of the Platform and reserves the right at any time to modify or discontinue the Platform, your access to the Platform, or any part thereof, with or without notice, including but not limited to the functionality or hours of availability, the equipment needed for its access or use, or its pricing. Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Platform or access to it.
8.2 YOU ACKNOWLEDGE THAT COMPANY IS NOT RESPONSIBLE OR LIABLE FOR YOUR USE OF ANY OF THE SERVICES. You acknowledge that any limitations on the Platform will not be cause for a refund for any of Company's services or products, except as expressly provided herein.
8.3 PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
9.1 Company may from time to time in its sole discretion develop and provide updates to the Platform, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:
9.1.1 the Platform will automatically download and install all available Updates; or
9.1.2 you may receive notice of or be prompted to download and install available Updates.
9.2 You shall promptly download and install all Updates and acknowledge and agree that the Platform or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Platform and be subject to all terms and conditions of this Agreement.
10. Ownership of Content.
10.1 Platform Content. This Platform is owned and operated by Company. All right, title and interest in and to Content provided in or through the Platform, including but not limited to information, documents, logos, graphics, sounds, page headers, button icons, service marks, trade dress, trademarks and images are owned either by Company or by third-party authors, developers, or vendors and licensed to Company ("Third-Party Providers"). Content and materials provided in or through the Platform are intended to facilitate your personal use and enjoyment of the Platform. Except as otherwise expressly provided by Company, Content not may be republished, reproduced, uploaded, displayed, posted, distributed, or transmitted, in any way, including without limitation in or on any other website, application or in a networked computer environment, and nothing in the Platform shall be construed to confer any license under any of Company's intellectual property rights, whether by implication, estoppel, or otherwise. Subject to your compliance with this Agreement, you may download copies of any Content required to be downloaded in connection with the Platform you desire, and you may use such downloaded Content solely for your personal, non-commercial use, provided that you retain all copyright and other proprietary notices contained on such documents. Company cannot guarantee that technical difficulties will not occur during the download of Content or that Content will download successfully. You further acknowledge that you do not acquire any ownership rights by using the Platform, Content or content provided by any third party. Any rights not expressly granted herein to you are hereby reserved by Company.
10.2 Copyrights. All of the Platform's designs, graphics, and the selection and arrangement thereof, are owned by Company. Copyright © 2020, Fit Concierge, LLC. ALL RIGHTS RESERVED.
10.3 Trademarks. "Fit Concierge," Company's logo, and all images and text, and all page headers, custom graphics and button icons are service marks, trademarks and/or trade dress of Company. All other trademarks, service marks, product names and company names or logos cited herein are the property of their respective owners. The trademarks, logos, and service marks displayed in the Platform (collectively the "Trademarks") are the registered and unregistered trademarks of Company, Company's licensors and suppliers, and others. Nothing contained in the Platform should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademarks without the express written permission of Company, Company's licensors or suppliers, or the third-party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Company will aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings.
11. Third-Party Materials and User Content.
11.1 The Platform may incorporate, integrate, display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you and you access and use of them are entirely at your own risk and subject to such third parties' terms and conditions.
11.2 We neither endorse nor are responsible for messages or statements, or for any opinion, advice, information or other utterance made or displayed in the Platform by third parties, whether such third parties are visitors to the Platform, members, or others. The opinions expressed in the third party content reflect solely the opinion(s) of the participants and may not reflect the opinion(s) of Company. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages or for any results obtained from the use of such information. Under no circumstances will Company or Company's affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on such information obtained through the Platform. If notified by a user of User Content posted in the Platform by you that allegedly does not conform to this Agreement, Company may in its sole discretion investigate the allegation and determine in good faith and in its sole discretion whether to remove such User Content. FOR THE AVOIDANCE OF DOUBT, COMPANY HAS NO RIGHT TO MODIFY ANY CONTENT POSTED THROUGH OR BY USE OF THE PLATFORM TO ANY THIRD PARTY APPLICATION OR WEBSITE, AND COMPANY WILL NOT REVIEW ANY SUCH USER CONTENT.
11.3 Company does not claim any ownership rights in Content that you post on the Platform or by use of or through the Platform (collectively "User Content") in any form. . After posting your User Content to or through the Platform, you continue to retain any such rights that you may have in your User Content, subject to the license herein. By displaying or publishing any User Content on or through the Platform, you hereby grant to Company and its designees an assignable license to use, publicly perform, publicly display, reproduce, and distribute such User Content solely in connection with Company's business, including, without limitation, for demonstration purposes, in Company's sole discretion.
11.4 Further, for User Content uploaded on the Platform (BUT NOT TO THIRD PARTY WEBSITES AND APPLICATIONS), this license shall also grant to Company the right, but not the obligation or duty, to modify, delete from, add to such User Content. This license shall be non-exclusive, irrevocable, fully-paid and royalty-free, sublicensable, worldwide, and perpetual. None of the User Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. If Company does decide, in its sole discretion, to attribute User Content to you, you hereby grant Company the right to use your user name with respect to such attribution, and waive any claims (including, without limitation, any privacy or publicity rights claims) with respect to such use of your user name. Company may reject, refuse to post or delete any User Content on Interactive Boards for any or no reason, including User Content that in the sole judgment of Company violates this Agreement or which may be offensive, illegal or violate the rights of any person or entity, or harm or threaten the safety of any person or entity.
11.5 Company assumes no responsibility for monitoring the User Content posted to the Platform and its Interactive Boards for Prohibited Content or inappropriate or offensive conduct. If at any time Company chooses, in its sole discretion, to monitor the Platform, Company nonetheless assumes no responsibility for the User Content, no obligation to modify or remove any inappropriate User Content, and no responsibility for the conduct of the user submitting any such User Content.
11.6 YOU ARE SOLELY RESPONSIBLE FOR THE USER CONTENT THAT YOU POST ON THE PLATFORM OR BY USE OF OR THROUGH THE PLATFORM, AND ANY MATERIAL OR INFORMATION THAT YOU TRANSMIT TO OTHER PARTIES AND FOR YOUR INTERACTIONS WITH OTHER PARTIES (INCLUDING BUT NOT LIMITED TO THIRD-PARTY PROVIDERS).
11.7 Company is and shall be under no obligation to (1) pay to user any compensation for any User Content, (2) review or modify any User Content, (3) respond to any User Content, or (4) post any User Content to the Platform.
12. Making Purchases.
12.2 You represent and warrant that all information you provide, including but not limited to all information concerning your name, address, credit card number, and other identifying information of any nature will be true, complete and correct, and that you will update all information as it changes. You agree that you will only use credit cards belonging to you or an affiliated company. You further agree that you will not attempt to conceal your identity by using multiple Internet Protocol ("IP") addresses or email addresses to use or to purchase Company products or services. You grant Company the right to provide third parties with any information you submit for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
12.3 To the extent that Company collects payments owed to Service Providers by Service Recipients, it does so as a limited payment collection agent. Company reserves the right to adjust or withhold all or a portion of a Service Provider's payment net of the Service Provider Use Fee (such net amount, excluding any tips or gratuity, being the "Net Service Payment") in order to resolve a Service Recipient complaint, or if Company reasonably believes that you have breached this Agreement. You acknowledge and agree that all payments owed to you shall not include any interest and will be net of any amounts that Company is required to withhold by law. In exercising its rights under this Section, Company is authorized and entitled to exercise offset rights against a Service Provider's Net Service Payments for any and all amounts arising from such Service Provider's breach of, or noncompliance with, this Agreement.
13. Pricing and Fees. Prices posted in the Platform represent the fees which are payable to Company for your use of and/or access to certain services and/or Content. You agree to pay all charges to your account, including applicable taxes, in accordance with billing terms in effect at the time a charge is made. We reserve the right to institute new fees or charges effective upon notice in the Platform. When prompted to do so, you must provide us with valid payment information. If payments cannot be processed or are returned for any reason, we reserve the right either to suspend or terminate your order, thereby terminating all further obligations by Company.
14. Digital Millennium Copyright Act.
14.1 If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing Company's Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
14.1.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
14.1.2 Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
14.1.3 Identification of the material that is claimed to be infringing that is the subject of infringing activity and that you are requesting to be removed or access to which is to be disabled and information reasonably sufficient to permit Company to locate the material;
14.1.4 Information reasonably sufficient to permit Company to contact you, such as an address, telephone number, and, if available, an electronic mail;
14.1.5 A 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
14.1.6 A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
14.2 Company's designated Copyright Agent to receive notifications of claimed infringement is Myman Greenspan Fox Rosenberg Mobasser Younger & Light LLP, 11601 Wilshire Boulevard, Suite 2200, Los Angeles, California 90025, attn: Audrey A. Benoualid, Esq. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Company's customer service to info@FitConcierge.com. You acknowledge that if you fail to comply with all of the requirements of this Section 14, your DMCA notice may not be valid.
15. Term and Termination.
15.1 The term of this Agreement commences when you download the Platform and will continue in effect until terminated by you or Company as set forth in this Section 15.
15.2 You may terminate this Agreement by deleting your User ID, deleting the Platform and all copies thereof from your Mobile Device, and ceasing use of the Platform through the Website.
15.3 Notwithstanding anything to the contrary in this Agreement, Company reserves the right, without notice and in Company's sole discretion, to suspend or terminate your ability to use the Platform (which would include deleting or deactivating your account, blocking your email or IP address, and/or blocking or preventing your future access to and use of the Platform). You agree that Company shall not be liable to you or any third party for any suspension or termination of your access to the Platform. Further, you agree not to attempt to use the Platform after said suspension or termination unless you have received prior written permission from Company.
15.4 Upon termination:
15.4.1 all rights granted to you under this Agreement will also terminate;
15.4.2 you must promptly destroy all Content downloaded or otherwise obtained from the Platform, as well as all copies of such Content, whether made under this Agreement or otherwise; and
15.4.3 you must cease all use of the Platform and delete all copies of the Platform from your Mobile Device and account.
15.5 Termination will not limit any of Company's rights or remedies at law or in equity.
16. Disclaimer of Warranties.
16.1 No representations or warranties, express or implied, are given regarding Content or your use of the Platform.
16.2 Without limitation, we make no representations, warranties, or guarantees regarding the services, or other acts or omissions of any Service Provider.
16.3 If you are not satisfied with Company's service please contact our customer service department at info@FitConcierge.com.
16.4 Without limiting the generality of the foregoing, you agree that use of the Platform, Content and the Services hereunder, including without limitation User Content, is entirely at your own risk. Company assumes no responsibility for errors or omissions in the Platform or Content, including any User Content, or any third-party application. The Platform and Content are provided on an "as is" or "as available" basis, without any warranties of any kind. Company does not warrant the quality, accuracy, security, reliability, completeness, or timeliness of the Platform, Content, the services, or any other information, text, graphics, links or other items contained within Content or any third-party application. To the fullest extent permitted by law Company disclaims any warranties for and does not assume any responsibility for any incompleteness, errors, security, reliability, timeliness, viruses, harmful components or effects, vulnerabilities, bugs, problems, omissions, inaccuracies or other limitations in, or interruptions in the operation of the Platform, Content, the services hereunder, or any other information, text, graphics, links or other items contained within Content or any third-party application, or any other services or goods received through or advertised in the Platform, or accessed through any links in the Platform. All express and implied warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights are expressly disclaimed to the fullest extent permitted by law, Company makes no commitment to update the information, including Content contained in, and sold through, the Platform.
16.5 You acknowledge that you are responsible for obtaining and maintaining all telephone, computer hardware and/or other equipment needed to access and use the Platform, and all charges related thereto. Your use of the Platform, Content and/or any of the services or products provided through the Platform or any third-party application are entirely done so at your own risk.
17. Limitations of Liability.
17.1 Under no circumstances shall Company, its affiliates, officers, directors, advisory board members, employees, shareholders, members, managers, licensors, suppliers, advertisers, sponsors, attorneys or agents, and their respective successors and assigns ("Company Parties") be liable to you or any third party under any contract, negligence, strict liability or other theory arising out of or relating in any way to the Platform, the services, including without limitation Content, User Content, contained in the Platform, or any other linked website or application or any product or service purchased through the Platform or any other site, for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if Company has been advised of the possibility of such damages), including without limitation, damages for loss of business, loss of data or lost profits) resulting from any aspect of your use of the Platform or the services hereunder, including without limitation Content, whether the damages arise from use or misuse of the Platform or the services, from inability to use the Platform or the services hereunder, or the interruption, suspension, modification, alteration, or termination of the Platform or the services hereunder. Such limitation shall also apply with respect to damages incurred by reason of other services or products received through or advertised in connection with the Platform or the services hereunder or any links in the Platform, as well as by reason of any information received through or advertised in connection with the Platform or the services or any links in the Platform. These limitations shall apply to the fullest extent permitted by law. If your use of Content from the Platform results in the need for servicing, repair or correction of equipment or data, you assume any costs thereof.
17.2 To the extent that the foregoing limitations on liability above are limited or restricted by law, your sole and exclusive remedy and Company's absolute limit of liability in connection with any lawsuit, claim or cause whatsoever directly or indirectly relating to or arising out of or relating in any way to the Platform and Content, whether based on contract, tort or any other legal theory of recovery, shall in all cases be strictly limited to the price paid by you directly to Company in connection with such access to or use of the Platform and Content. You acknowledge and agree that, if the limitations of liability set forth above are limited or restricted by law, the exclusive remedy set forth in this Section 17 shall be your sole remedy even if such remedy fails in its essential purpose for any reason whatsoever, and in no event shall Company be liable for any direct, indirect, incidental, punitive, special, consequential or exemplary damages (even if Company has been advised of the possibility of such damages), to you or any third party.
17.3 You further acknowledge that you understand the risks of engaging in physical activities, and hereby agree to voluntarily assume these risks and to release and hold harmless the Company Parties in connection with or arising out of any claim, action, loss, expense, or demand, including reasonable attorneys' fees and court costs. The Company assumes no responsibility to supervise or evaluate Service Provider's or the services delivered by them through the Platform. It is your sole responsibility to determine if activities with a Service Provider are suitable for you.
19. Essential Basis of Bargain. YOU ACKNOWLEDGE THAT COMPANY HAS SET ITS PRICES AND PROVIDED ACCESS TO OR USE OF THE PLATFORM, THE SERVICES, DOCUMENTS OR TOOLS INTEGRATED THEREIN, AND/OR ANY CONTENT IN RELIANCE OF THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, AND THE INDEMNITY SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS UPON WHICH THIS AGREEMENT IS ESTABLISHED, AND UPON WHICH COMPANY HAS PROVIDED TO YOU ACCESS TO OR USE OF THE PLATFORM, THE SERVICES AND/OR CONTENT. YOU AGREE THAT THE LIMITATIONS OF LIABILITY, THE DISCLAIMERS OF WARRANTIES AND DAMAGES, AND THE INDEMNITY SET FORTH HEREIN IN SECTIONS 16-18 WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
20. Promotional Offers, Contests and Sweepstakes. Company may from time to time offer participation in promotional offers, contests and sweepstakes in the Platform. Your participation in these offers, contests and sweepstakes is governed by the express rules applicable to each such offer, contest or sweepstakes.
21. Force Majeure. Company expressly disclaims all, and assumes no, responsibility for problems relating to the Platform or the delivery of Services that are beyond Company's reasonable or actual control, including, without limitation, natural disasters, storms, disruption of shipping channels or carriers, terrorism, regulations or governmental acts, fires, riot or civil disturbances, electrical power outages, computer viruses, strikes or general labor force disruptions, networking or Internet failures, or other failures affecting the Services.
22. Technical Support Issues. If you encounter a technical problem when attempting to print or otherwise access your completed form, or some other problem you may encounter in attempting to utilize the Platform, Company's customer service representatives may be able to assist you with your problem. If you contact Company's customer service representatives and request that a customer service representative assist you, the Company will not be liable for any technical problems that may persist or arise with your Mobile Device (or other computing device) after doing so.
23. Inaccuracy. From time to time there may be information on the Platform that contains typographical errors, inaccuracies, or omissions. Company may correct errors, inaccuracies, or omissions and change or update information at any time without notice. Company apologizes for any inconvenience this may cause you. Notwithstanding anything else herein, you are not entitled to rely on any error, inaccuracy, or omission, and as such relate to quotations, pricing, or other aspects of Transactions, you hereby authorize Company to charge the correct amounts to your account in each instance.
24. General information. This Agreement constitutes the entire agreement between you and Company and governs your use of the Platform and Content, superseding any prior agreements between you and Company. The failure of Company to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. This Agreement does not limit any rights that Company may have under trade secret, copyright, patent, trademark or other laws. The employees of Company are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Company, except in a writing signed by an authorized officer of Company. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
25. Construction. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
26. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Except with respect to Authorized User who agree to be bound by this Agreement, this Agreement, and the duties and obligations arising under it, may not be assigned by User. Company may freely assign this Agreement.
27. Modifications and Updates of this Agreement and Acceptance. The agents, employees and contractors of Company are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Company. Company reserves the right to modify, add, alter or otherwise update this Agreement from time to time, and you are highly encouraged to review this Agreement from time to time. Each time you use the Platform, the current version of this Agreement will apply. In the event of any modification to or update of this Agreement, Company will provide notice to you in accordance with this Agreement. You can determine whether this Agreement has been revised since your last use of the Platform by referring to the "Last Updated" legend at the bottom of this Agreement. Please read this Agreement carefully. Your use of the Platform after any modification to or update of this Agreement constitutes your acceptance to be bound by this Agreement in the form it then exists, including any modifications or updates. If at any time you do not accept all the terms and conditions contained herein, you must immediately discontinue use of the Platform and contact Company regarding your voluntary termination of this Agreement.
28. You warrant, represent and agree that, by accessing and/or using the Platform, Content and/or any User Content, you (i) do so with knowledge of any and all rights that you may have with respect to the provisions of this Agreement, (ii) have carefully read and considered this Agreement and fully understand its contents and the significance of its contents, (iii) are consenting to this Agreement of your own informed and free will, based upon such party's own judgment and without any coercion or fear of retaliation, and (iv) you have been afforded the opportunity to obtain independent legal advice with respect to this Agreement.
29. This Agreement and the relationship between you and Company shall be governed by the laws of the State of California without regard to any conflicts of laws principles. Further, to the extent the arbitration provisions of this Agreement are void, unenforceable, or inapplicable, you agree that all actions or proceedings arising in connection with your use of the Platform and this Agreement shall be tried and litigated exclusively in the State and Federal courts located in the County of Los Angeles, State of California. The aforementioned choice of venue is intended to be mandatory and not permissive in nature, thereby precluding the possibility of litigation between you and Company with respect to or arising out of this Agreement in any jurisdiction other than that specified in this Section. You hereby waive any right you may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulate that the State and Federal courts located in the County of Los Angeles, State of California shall have in personam jurisdiction and venue over you for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to your use of the Platform or this Agreement. You hereby authorize and accept service of process sufficient for personal jurisdiction in any action against you as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid. Any final judgment rendered against a party in any action or proceeding shall be conclusive as to the subject of such final judgment and may be enforced in other jurisdictions in any manner provided by law. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to (i) the use of the Platform or Content, or (ii) this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever barred. You also agree that this Agreement shall not be construed against the drafting party, i.e., Company.
30. Equitable Relief. In addition, in the event of a breach of this Agreement by you, the Company will, in addition to all other remedies available to it, be entitled to equitable relief by way of a temporary restraining order, or preliminary or permanent injunction and any other legal or equitable remedies. This provision will not be construed as a waiver of the rights which the Company may have for damages under this Agreement or otherwise, and all of the Company's rights and remedies will be unrestricted.
31. No Non-US Representations. Company makes no representation with respect to the laws of nations other than the United States, or that the Platform, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to purchase, install, and/or use the Platform do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. By using the Platform, visitors from outside of the United States of America acknowledge this Agreement and all matters related to the Platform are subject to the laws and regulations of the United States of America, subject to the governing law herein, and waive any claims that may arise under their own national laws.
32. Questions. If you have any questions, comments or complaints regarding this Agreement or the Platform, feel free to contact us at info@FitConcierge.com.
33. Notice for California Users. Under California Civil Code Section 1789.3, California users of the Platform are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
34. Export Regulation. The Platform may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, attempt to export, re-export or release the Platform to, or make the Platform accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Platform available outside the US.
35. Severability. If any non-material provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
37. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
38. Conflicting Terms. If you have been provided with a non-English translation of this Agreement, the English language version will govern your relationship with Company, and will control in the event of a conflict. Any translation is provided, is provided solely for your convenience. In the event of a conflict between the terms of this Agreement and any work order, the terms of this Agreement control. In the event of any conflict between the terms of this Agreement and any amendment, addendum, or other modification to the Agreement promulgated or published by Company, then the terms of the other document will control with respect to the applicable matters.
39. Consent to Phone and Email Contact, Notice, and Related Matters.
39.1 Company may call or text you or authorize others to call or text you on Company's behalf using any number you provide to Company for any purpose. This consent shall supersede your registration of such number on any state or federal "do not call" lists. You are responsible for charges for incoming text messages on your phone. You may however, opt out of calls marketing Company's services by notifying Company of your request to not be contacted by phone for marketing purposes. You agree that Company may monitor or record your telephone conversations with Company (whether Company calls you, or you call Company). If you do not wish your telephone conversations with Company to be monitored or recorded, you should conduct your communications with Company via email. Company may email you or authorize others to email you on Company's behalf using any address you provide to Company for any purpose, including marketing of Company's services. Similar to the phone marketing opt-out, you may opt out of receiving marketing and promotional emails by emailing your request to Company.
39.2 You authorize Company to provide required notices to you on Company's website, in or on any bill or invoice provided to you, via email, or by any other communication permitted under applicable law. Company may ask you to provide consents or authorizations, including by electronic means including email or via the Platform . Given the nature of the Platform, any such electronic agreement using your User ID and/or PIN shall operate as your direct consent or authorization, and you agree that Company rely on such consent or authorization. Upon Company's request, you will provide Company with a current email address that you regularly check so that Company may provide notices and communications to you at that address. If you stop using that email address, you will provide Company with a new address for such purposes.
40. Binding Arbitration.
40.1 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, AS SET FORTH BELOW.
40.2 Any dispute between the parties to this Agreement, any dispute between you and Company, as well as any controversy or claim arising out of or relating to this Agreement (including as may arise under the Private Attorneys General Act of 2004, California Labor Code § 2698 et seq., in each case, a "Dispute")) will be settled by arbitration before a single arbitrator administered by the American Arbitration Association under its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA's website (www.adr.org) (the "AAA Rules") or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Disputes presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person's Disputes, or otherwise preside over any form of representative, collective, or class proceeding. The parties may select a different arbitration administrator upon mutual written agreement. The arbitration shall be governed by the state law or federal law applicable to each specific claim brought, with the exception that arbitrability shall be determined by the arbitrator and governed in primary conformity with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and, secondly, any state arbitration act.
40.3 The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Service Recipients or Service Providers, but is bound by rulings in prior arbitrations involving the same Service Recipient or Service Provider to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
40.4 To ensure timely resolution of disputes, the party initiating arbitration must do so within the statute of limitations (deadline for filing) provided by applicable law pertaining to the Dispute, subject to any shorter period of time set forth in this Agreement which is intended to shorten the applicable statute of limitations. The failure to initiate arbitration within this time limit will bar any such claim.
40.5 The arbitration will be conducted in Los Angeles County, California, before a neutral arbitrator. The arbitration will have jurisdiction to determine the arbitrability of any claim. The arbitrator shall have the authority to grant all monetary or equitable relief (including, without limitation, ancillary costs and fees) available under state and federal law. The award rendered by the arbitrator shall be in writing, setting forth the essential findings and conclusions upon which the award is based. The award may be entered and enforced by any court having jurisdiction thereof. This Agreement and its enforcement shall be governed by the law of the state of California and any discovery shall be permitted in accordance with the Federal Arbitration Act and any applicable state arbitration act, subject to AAA Rules.
40.6 No Class or Consolidated Disputes
40.6.1 YOU AND COMPANY AGREE THAT YOU MAY BRING CLAIMS, AS APPLICABLE, AGAINST THE COMPANY ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the trier of fact may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Dispute or issue any relief on a class, collective, or representative basis. 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 that party's individual claims.
40.7 If Company initiates arbitration under this Section 40, Company will pay all AAA filing and arbitration fees. With respect to any Disputes brought by Company against a Service Provider, or for Disputes brought by a Service Provider against Company that are based on an alleged employment relationship between Company and a Service Provider, Company will pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Company pursuant to the fee provisions above). Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys' fees and pay any costs that are not unique to the arbitration.
40.8 The exceptions to the Dispute resolution provisions of this Section 40 are: (a) actions by Company for equitable relief; and (b) any other claim where an agreement to arbitrate is unenforceable under applicable law and not preempted by the FAA. To the extent that either party has the right to seek assistance from, file charges with, or participate in investigations and proceedings of any federal, state or local agency, such rights are not precluded by this dispute resolution provision, but this dispute resolution provision does operate as a waiver of any additional personal monetary recovery if related to any Dispute. In the event of any administrative or judicial action by any agency or third party that adjudicates any Dispute, neither Company, nor you, shall be permitted to receive a double recovery.
40.9 Except in the discretion of Company in the event that confidentiality would prevent the deduction by Company of payment to you pursuant to any award, the parties agree to keep confidential, and will not disclose to any person, except as otherwise required by law, the existence of any controversy covered by this dispute resolution process, the referral of any such controversy to arbitration or the status or resolution thereof.
40.10 Severability. In the event that any portion of this Section 40 is deemed illegal or unenforceable under applicable law, and not preempted by the FAA, such provision shall be severed and the remainder of the provisions of this Section 40 will be given full force and effect.
LAST UPDATED: JANUARY 15th, 2021
SUPPLEMENTAL TERMS OF SERVICE FOR SERVICE PROVIDERS
1. By enrolling as a Service Provider on the Platform, and providing services to Service Recipients, you represent, warrant, covenant, and agree that, at the time you enroll, and at all times while using the Platform:
1.1 Your biographical information provided to the Company, and disclosed in the Platform, is complete, true, and correct in all respects, including, without limitation, as such information relates to education, credentials, and certifications.
1.2 You will not attempt to use the Platform in any way which may mislead, defraud, or otherwise abuse the Platform, the Company, or any Service Recipient.
1.3 You agree that we may obtain information about you, including customary background check information, and you agree to provide any further necessary authorizations to facilitate our access to such records so long as you are using the Platform; provided, we assume no duty to conduct background checks of any kind.
1.4 You have a valid policy of general commercial liability insurance.
1.5 You will pay all applicable federal, state and local taxes based on amounts paid or credited your account via the Platform.
2. You hereby acknowledge and agree that Company will charge a Service Provider Platform use fee (the "Service Provider Use Fee"), and a Service Recipient Platform use fee (the "Service Recipient Use Fee"), for each transaction conducted through the Platform. The Service Provider Use Fee and Service Recipient Use Fee will be earned by Company upon acceptance of the applicable Service Provider and Service Recipient of a match, and upon each scheduled instance of services between such parties thereafter.
3. Company may use any payment processing service in its absolute discretion, each of which payment processing service will be subject to such third-party's terms of service and other applicable terms and policies. You authorize Company to obtain all necessary access and perform all necessary activity on your account with each applicable payment processing service to facilitate your use of the Platform.
4. Each Service Provider understands that Company may undertake promotions or discounts, which will, subject to the terms of such promotion, reduce the Net Service Payment which may otherwise be due to you in connection with your use of the Platform. If a promotion will reduce the Net Service Payment which would otherwise be due to you from a request for services by a Service Recipient, Company will endeavor to always disclose the terms of any promotion, in advance of your acceptance of a Service Recipient's request for services.