Fitonist, (“Fitonist”, “we”, “us” or “our”) does not provide medical, fitness or other advice. You participate in exercise activities entirely at your own risk.
1. Contractual Relationship
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Fitonist. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. Fitonist may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Service(s). Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
Fitonist may amend the Terms related to the Services from time to time. Amendments will be effective upon Fitonist’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. The Services
The Services constitute a technology platform that enables users of Fitonist’s mobile application (each, an “Application”) to receive workout routines and get recommended exercises based on your body recovery state, fitness history and workout style, including without limitation any advice, information, nutritional recommendations, recipes or other materials. Unless otherwise agreed by Fitonist in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. YOU ACKNOWLEDGE THAT FITONIST DOES NOT PROVIDE PHYSICAL SERVICES OR FUNCTION AS A PERSONAL TRAINER. TO THE EXTENT THAT FITONIST PROPOSES WORKOUT ROUTINES OR PHYSICAL TRAINING INTENDED TO BE PERSONALIZED TO YOUR FITNESS GOALS, YOU AGREE THAT FOLLOWING, ADOPTING OR EXECUTING SUCH WORKOUT ROUTINES OR PHYSICAL TRAINING IS ENTIRELY AT YOUR RISK AND THAT YOU SHOULD CONSULT A FITNESS PROFESSIONAL OR PROCEED AT YOUR OWN RISK.
Subject to your compliance with these Terms, Fitonist grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Fitonist and Fitonist’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Fitonist; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
5. PROVISION OF THE SERVICES.
You acknowledge that portions of the Services may be made available under Fitonist’s brand or request options associated with physical training, including the personalized training brand currently referred to as “Fitonist”. You also acknowledge that the Services may be made available under such brands or request options by or in connection with: certain of Fitonist’s affiliates.
6. THIRD PARTY SERVICES AND CONTENT.
The Services and all rights therein are and shall remain Fitonist’s property or the property of Fitonist’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Fitonist’s company names, logos, product and service names, trademarks or services marks or those of Fitonist’s licensors.
8. ONE-TIME PAYMENTS AND SUBSCRIPTIONS.
Fitonist requires payment of a fee for use of the Services (or certain portions thereof) and you agree to pay such fees. You have the option of making a one-time payment (“One-Time Payment”) or purchasing a subscription (“Subscription”) for such use.
Whether you make a One-Time Payment or purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes
and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars.
If you purchase a Subscription, you will be charged the annual Subscription fee, plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each year thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE FITONIST TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each year on the anniversary of the commencement of your Subscription, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Fitonist. Your Subscription continues until canceled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms.
III. CANCELING ONE-TIME PAYMENT OR SUBSCRIPTION.
You may cancel a Transaction for a full refund within ten (10) calendar days of your initial purchase. AFTER THAT, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR ONE-TIME PAYMENT OR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. EXCEPT AS SET FORTH ABOVE WITH RESPECT TO YOUR INITIAL SUBSCRIPTION PURCHASE, YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to firstname.lastname@example.org. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then current Subscription period and will then terminate without further charges.
9. YOUR USE OF THE SERVICE
I. USER REQUIREMENTS AND CONDUCT.
The Service is not available for use by persons under the age of 13. You may not allow persons under the age of 13 to receive personalized workouts or training from Third Party Providers unless they are monitored by you. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party.
II. USER PROVIDED CONTENT.
Fitonist may, in Fitonist’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Fitonist through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to Fitonist, you grant Fitonist a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Fitonist’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Fitonist the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Fitonist’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Fitonist in its sole discretion, whether or not such material may be protected by law. Fitonist may, but shall not be obligated to, review, monitor, or remove User Content, at Fitonist’s sole discretion and at any time and for any reason, without notice to you.
III. NETWORK ACCESS AND DEVICES.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. Fitonist does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
10. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS, MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS, TIMELINESS, OR RELIABILITY.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE RISK. Fitonist EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. Fitonist MAKES NO WARRANTY THAT THE SITE, APPLICATION, SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” Fitonist DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, FITONIST MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FITONIST DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
II. LIMITATION OF LIABILITY.
1. FITONIST SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, EVEN IF FITONIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITONIST SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF FITONIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITONIST SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FITONIST’S REASONABLE CONTROL.
2. FITONIST’S SERVICES MAY BE USED BY YOU TO PLAN AND CONDUCT A WORKOUT, BUT YOU AGREE THAT FITONIST HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY EXERCISE, WORKING OUT, GOODS OR SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
3. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
4. You acknowledge that the Services have not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Applications meet your requirements.
5. The physical activities to which the Services relate carry certain inherent risks including personal injury and property damage. You acknowledge that you undertake such activities entirely at your own risk.
6. Where you have been supplied the Services for domestic and private use only you agree not to use the Applications and Services for any commercial, business or resale purposes which are not first authorized by Fitonist.
7. You agree that Fitonist, its owners, officers, employees and agents have no liability to you for any loss of employment, wages, salary, profit, loss of business, business interruption, or loss of business opportunity.
8. You acknowledge that the Applications and Services do not provide medical advice, fitness advice or other advice.
9. You are solely responsible for maintaining the confidentiality of the device through which you access the Services and for restricting access to your password and to your computer while logged into the Services. You accept responsibility for all activities that occur under your account or device.
10. Our maximum aggregate liability under or in connection with these Terms (including your use of any Application or Services) whether in contract, tort (including negligence) any cause of action or otherwise, or under any theory of damages, shall in all circumstances be limited to the amount you paid for the Services in the last twelve (12) months.
III. NO MEDICAL ADVICE.
Fitonist provides the Services for you to track, manage, and plan your fitness activities. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR OPINION. We are not licensed medical professionals, and we are not in the business of providing medical advice. You should always consult a qualified and licensed medical professional prior to beginning or modifying any diet or exercise program. YOUR USE OF THE SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND FITONIST.
You agree to indemnify and hold Fitonist and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Fitonist’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.
11. DISPUTE RESOLUTION
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Fitonist, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Fitonist are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Fitonist otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
II. ARBITRATION RULES AND GOVERNING LAW.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
III. ARBITRATION PROCESS.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. ARBITRATION LOCATION AND PROCEDURE.
Unless you and Fitonist otherwise agree, the arbitration will be conducted in New York, New York (unless the arbitrator selects another one if New York, New York is unreasonably burdensome to either party). If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Fitonist submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
V. ARBITRATOR’S DECISION.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees
and expenses, to the extent provided under applicable law. Fitonist will not seek, and hereby waives all rights Fitonist may have under applicable law to recover attorneys’ fees and expenses if Fitonist prevail in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Notwithstanding the provisions of the modification-related provisions above, if Fitonist changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing Fitonist written notice of such rejection by email to: email@example.com, within 30 days of the date such change became effective, as indicated in the “Last update” date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this “Dispute Resolution” section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and Fitonist in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
7. Other Provisions
I. CHOICE OF LAW.
These Terms are governed by and construed in accordance with the laws of the State of New York, U.S.A., without giving effect to any conflict of law principles.
Fitonist may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Fitonist, with such notice deemed given when received by Fitonist at any time, by email to: firstname.lastname@example.org.
You may not assign these Terms without Fitonist’s prior written approval. Fitonist may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of Fitonist’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Fitonist or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Fitonist’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Fitonist in writing.
13. CONSUMER NOTICE: CALIFORNIA CIVIL CODE SECTION 1789.3
Under California Civil Code section 1789.3, California users are entitled to the following specific consumer rights information:
(a) Pricing Information. Current rates for using the Services may be obtained by calling (650) 335-9800. Fitonist reserves the right to change fees, surcharges, monthly Subscription Fees or to institute new fees at any time upon prior notice, as provided for in these Terms at Section 12(II).
(b) Complaints. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834] or by telephone at (800) 952-5210.