1. APP LICENSE; APP ACCESS, SUSPENSION AND TERMINATION
Company may in the future update the App to change the material, product and service offerings, App Content, and/or features thereof at any time (an “Update”). Company shall not be liable to any User in any way as a result of any temporary unavailability of the App arising from or in connection with an Update. Furthermore, Company is under no obligation to provide an Update. The terms of the License granted to you pursuant to this Section 1 shall apply in full to any Update. Additionally, you agree to promptly download and install any Update that Company makes available through the iTunes App Store or Google Play store or through any other mobile application store or otherwise, as applicable.
Your access to the App may be interfered with by numerous factors outside of Company’s control including, but not limited to, telecommunications or wireless network service disruptions, computer or mobile device viruses and bugs, tampering, unauthorized intervention, fraud, technical failures, and server, equipment, or software defects. Company is not responsible and will have no liability for any failures caused by factors outside of Company’s control. In addition, perfect security does not exist on the internet or mobile devices; Company cannot and does not guarantee that any Registration Data or other personally identifiable information submitted to the App will not become public under any circumstances.
2. USER ACCOUNTS; REGISTRATION DATA; CONSENT TO RECEIVE EMAILS
In order to access and utilize the App, each User will need to register and create a unique User profile account (each, a “User Account”). You agree to create only one (1) unique User Account, and that you shall be the sole authorized user of your User Account. You may create a User Account directly through the App. As part of the User Account creation and registration process, Users will be asked to submit certain information such as the User’s name, email, address, phone number, date of birth, gender, User public profile name, and/or picture, etc., and to create a User Account login password (collectively, “Registration Data”). You agree that all Registration Data you provide to Company will be true, accurate, current and complete. Company may from time to time modify or add to the Registration Data information fields required as part of the User Account creation and registration process, and you agree to promptly complete any such additional or modified information fields if requested by Company.
Company will have the right to use your Registration Data in connection with servicing and operating the App. You agree to: (i) keep your Registration Data true, accurate, current and complete at all times (and will promptly update your Registration Data as necessary from time to time), (ii) prevent access by any other person or entity to your User Account, password, or other login information, (iii) not knowingly use the name or email of any other person without authorization, (iv) not use a User public profile name that is profane, offensive, or otherwise inappropriate, (v) not allow any third party to use your login information, Registration Data, or User Account, and (vi) notify Company of any breach of security by promptly sending Company an e-mail to [email protected]. You agree that you will be liable for all activities that occur under your User Account, even if such activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using your User Account, Registration Data, or password with or without your knowledge. You acknowledge and agree that certain Registration Data (such as your User public profile name and/or picture) that you provide in connection with the User Account creation/registration process will be publicly viewable by all other Users of the App.
4. USER REPRESENTATIONS AND WARRANTIES
You represent and warrant that any User Content and other information that you submit or upload to the App (i) will not be fraudulent or involve the sale of counterfeit or stolen items; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing consumer protection, unfair competition, anti-discrimination or false advertising); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (vi) will not create liability for Company or cause Company to lose (in whole or in part) the services of its ISPs or other partners or suppliers; and (v) will not contain any commercial speech.
5. PUBLIC AREAS; CONDUCT WITH OTHER USERS; PROHIBITED USES OF APP
The App contains User public profiles and labels, chat, and other User-to-User messaging functions, and may in the future contain additional communication facilities such as blogs, message boards, news groups, forums and other interactive community-based systems that allow Users to communicate with other Users (collectively, “Public Areas”). You may only use such Public Areas to send and receive messages and material that are relevant and proper to the applicable forum. You further acknowledge and agree that submissions made to Public Areas may be publicly available to other Users, and that you will be publicly identified by your User Account public profile name or label name when communicating in Public Areas, and Company will not be responsible for the action of any Users with respect to any information or materials posted in Public Areas.
All Users shall be solely responsible for all interactions with other Users of the App. In your interactions with other Users, you agree to conduct yourself professionally, civilly and respectfully at all times. While using the App, you agree that you shall not under any circumstances harass, disparage or make mischief against any other User of the App. You hereby acknowledge and agree that Company does not actively monitor or police the Public Areas or specific interactions between Users of the App (and has no obligation to do so) and you hereby disclaim and hold Company harmless from and against any and all liability resulting from a User’s interaction with, or conduct towards, any other User. Notwithstanding the foregoing, Company reserves the right to determine, in its sole discretion, what constitutes harassment or mischief, and may, also at its sole discretion, partially or completely deny, suspend, or terminate access to the App to any infringing party.
Without limiting the foregoing, you may not:
- Defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as, but not limited to, rights of privacy and publicity) of Company or other Users, or use information learned from the App to otherwise defame, abuse, harass, stalk, threaten, intimidate, or mislead, or otherwise violate the legal rights of Company or any other User outside of the App.
- Submit or upload User Content to the App or otherwise utilize Public Areas to communicate or distribute information that is defamatory, profane, infringing, obscene, unlawful, offensive or harmful, including, but not limited to, content that advocates, endorses, condones, or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Use the App for any purpose in violation of local, state, national, or international law.
- Upload User Content that violates the intellectual property rights (or rights of privacy or publicity) of any third party or for which you have not obtained the necessary rights or permissions to use accordingly.
- Upload User Content or files that contain viruses, Trojan horses, corrupted files, malware, spyware, bugs, or any other similar software that may damage or infiltrate the operation of any other User’s mobile device.
- Impersonate another person or User, or knowingly allow any other person or User to use your identification or User Account to utilize the App.
- Advertise or make unsolicited offers to sell any goods or services for any commercial purpose through the App, conduct or forward surveys, contests, pyramid schemes, or chain letters, or otherwise repeatedly upload User Content or message other Users (“Spamming”). Spamming is strictly prohibited.
- Make any use of any App Content or User Content that would infringe the copyright(s) therein.
- Upload User Content that provides materials or access to materials that exploit people in an abusive, violent, or sexual manner.
- Restrict or inhibit any other User from using and enjoying the Public Areas.
- Imply or state that any statements you make are endorsed by Company or any other User, without the prior written consent of Company or such User.
- Use a robot, spider, manual or automatic processes, or devices to data-mine, data-crawl, scrape, or index the App in any manner.
- Hack or interfere with the App, its servers, or any connected networks.
- Adapt, alter, license, sublicense, or translate the App for your own personal or commercial use.
- Remove or alter, visually or otherwise, any copyright or trademark notices, or other proprietary marks and rights owned by Company.
- Reverse engineer, decompile, disassemble, or otherwise tamper with any security components, usage rules, or other protection measures applicable to the App or any App Content.
- Use the App to collect usernames or email addresses of Users by electronic or other means.
- Use the App in a manner which is false or misleading (directly or by omission or failure to update information) or for the purpose of accessing or otherwise obtaining Company’s trade secret information for public disclosure or other purposes.
- Register under different usernames or identities after your User Account has been suspended or terminated, or register under multiple usernames or identities.
- Cause or induce any third party to engage in the restricted activities above.
- Mistreat any instructor of classes offered through the App. Any such mistreatment may result in termination of your User Account and a permanent ban on using the services provided through the App.
6. INTELLECTUAL PROPERTY RIGHTS; STORAGE OF USER CONTENT
As between you and Company, Company retains all right, title and interest in and to (i) the App and the App Content (excluding User Content), and (ii) all associated trade secret rights and other intellectual property and proprietary rights in and to the App and App Content recognized anywhere in the world (collectively, “App IP”). App IP is protected in all forms, media, and technologies now known or hereinafter developed. Company also owns the coordination, selection, arrangement, and enhancement of such App IP as a collective work under the United States Copyright Act, as amended. The App IP is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws.
You retain all right, title and interest in and to any compliant User Content that you upload onto the App; provided, that you hereby grant to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable, assignable, sublicensable (through multiple tiers) license to exercise all copyright, publicity rights, and any other rights you have in such User Content, in any media now known or not currently known in order to operate, perform, promote, advertise, market and improve upon the App.
You acknowledge and agree that Company may establish general practices and limits concerning use of the App, including without limitation the maximum number of days that User Content posted to the App will be retained by or made available through the App and the maximum disk space that will be allotted on Company’s servers on your behalf. You agree that Company has no responsibility or liability for the blocking, deletion, or failure to store any User Content maintained or transmitted by the App. You further acknowledge that Company reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice to you.
The service marks and trademarks of Company, including without limitation Company and Company logos are service marks and trademarks owned by Company. Any other trademarks, service marks, logos, and/or trade names appearing via the App are the property of their respective owners. You may not copy or use any of these marks, logos or trade names without the express prior written consent of Company or the applicable owner thereof.
7. INFRINGEMENT CLAIMS PROCEDURE
Company respects the intellectual property rights of others and expects all Users to do the same. If you believe, in good faith, that any App Content or User Content is infringing your or any third party’s copyrights or other intellectual property rights, please provide Company with a written notification of such violation (a “DMCA Notice”), containing the following information: (a) your name, address, telephone number and email address (if any); (b) a description of the copyrighted work that you claim has been infringed; © a description of where on the App the material that you claim is infringing may be found, sufficient for Company to locate the material (e.g., the URL); (d) a statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent or the law; (e) a statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf; and (f) your electronic or physical signature.
If you believe, in good faith, that your User Content has been removed by mistake or misidentification, please provide Company with a written counter-notification containing the following information: (a) your name, address, and telephone number; (b) a description of the material that was removed and the location on the App where it previously appeared; © 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; (d) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which Company may be found (which includes the United States District Court for the Southern District of New York), and that you will accept service of process from the person who filed the original DMCA Notice or an agent of that person; and (e) your electronic or physical signature.
8. THIRD-PARTY CONTENT
The App may include third-party content or links to third party websites, products or services (including external websites or services that are framed by the App as well as advertisements displayed in connection therewith) that are not owned or controlled by Company (collectively, “Third Party Content”). Inclusion of any Third Party Content on the App does not constitute or indicate Company’s endorsement thereof, and Company shall not be responsible for any Third Party Content transmitted through the App. You may be subject to additional terms and conditions of use, guidelines, or rules applicable to any Third Party Content that you access through the App (“Third Party Terms”). You acknowledge and agree that Company will not and cannot censor or edit any Third Party Content and that you shall assume the sole responsibility for and risk associated with your use of Third Party Content, including compliance with the Third Party Terms associated therewith. Accordingly, Company encourages you to be aware when you leave the App and to read the Third Party Terms associated with any Third Party Content.
You expressly relieve Company from all liability arising from your use of any Third Party Content, including any loss or damage incurred as a result of any dealings between you and any third parties, or as the result of the presence of such Third Party Content on the App or the failure of such Third Party Content to function as intended.
9. MEMBERSHIP FEES AND BILLING
By starting a FitHouse membership, you authorize Company to charge you a recurring monthly membership fee. All monthly memberships are for a minimum of two (2) months, after which you may cancel your membership as provided below. If you purchase a class or a package of multiple classes, you authorize us to charge you the fees associated with your purchase, as indicated on the App. We will charge you the applicable fees using a credit card, debit card, third-party online payment service such as PayPal, through a mobile device (such as Apple Pay), or other acceptable payment mechanism (“Payment Method”) at the then-current rate as stated on the App, which may change from time to time. You authorize us to charge you any other fees you may incur in connection with your use of the App, such as any applicable in-app or in-class purchases, sign-up fees, cancellation, no-show or late fees, and taxes. When you sign up for a FitHouse monthly membership, your first membership cycle will be billed immediately, and your membership will automatically renew and be billed each month on the same date of each month. We reserve the right to change our billing date.
When you provide information related to a Payment Method to Company, you represent that you are the owner or authorized user of such Payment Method. You agree to provide current, complete, and accurate billing information in connection with your User Account and any Payment Method. You agree that Company and/or a third party may charge your Payment Method for any amounts (including any taxes and fees) as may be accrued by or in connection with your User Account as a result of certain purchases that you agree to make through the App. Failure to comply with this provision (including, without limitation, falsification of any information relating to your User Account or Payment Method) may, at Company’s option, result in immediate suspension or termination of your right to use the App. If your Payment Method expires you will remain responsible for any uncollected amounts.
All refund requests for purchases must be made within five (5) days of the applicable purchase. Appropriate documentation will be required in order to receive a refund.
10. Termination; CANCELLATION POLICIES
You may cancel your membership at any time with 30 days’ notice by going into your User Account settings and canceling. However, as stated above, all memberships are for a minimum term of two (2) months. So, while you may notify FitHouse that you wish to cancel your membership during the first or second month, it will not actually be cancelled until the end of the second month. Following any cancellation, you will continue to have access to your membership and User Account through the end of the current billing period. Note that if you do terminate your membership, you will not be entitled to a refund of any prepaid membership fees.
Class reservations may be cancelled via the App up to twelve (12) hours prior to the start of the scheduled class without penalty. For those who purchased the applicable class either alone or as part of a class pack, failure to show up or cancel at least twelve (12) hours prior to the start of the scheduled class will result in a lost class with no refund. For those with a monthly membership, failure to show up or cancel at least twelve (12) hours prior to the start of the scheduled class will result in a $15 cancellation charge, without refund.
Classes purchased individually or as part of a package of classes may expire, and are subject to the expiration period provided on the App, which may change from time to time.
11. WAIVER; RELEASES; DISCLAIMERS
Neither Company nor its affiliates or licensors is responsible for the conduct, whether online or offline, of any User and you hereby release Company and its affiliates and licensors from any liability related thereto. Company and its affiliates and licensors will not be liable for any claim, injury, or damage arising in connection with your use of the App.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
YOUR USE OF THE APP IS ENTIRELY AT YOUR OWN RISK. to the EXTENT NOT PROHIBITED BY LAW, THE APP IS PROVIDED ON AN “AS IS” and “as available” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. to the EXTENT NOT PROHIBITED BY LAW, COMPANY (OR THE APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED SUCH APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE) MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP CONTENT OR USER CONTENT PROVIDED THROUGH THE APP OR THIRD PARTY CONTENT INCLUDED IN, OR LINKED TO OR FROM, THE APP AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY: (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE APP, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR ANY AND ALL PERSONAL INFORMATION OR FINANCIAL INFORMATION STORED THEREIN. COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY WEBSITE, PRODUCT, OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE APP OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT ACCESS TO THE APP WILL BE UNINTERRUPTED OR THAT THE APP WILL BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP, OR AS TO THE TIMELINESS, ACCURACY, RELIABILITY, COMPLETENESS, OR CONTENT OF ANY INFORMATION OR MATERIALS PROVIDED THROUGH OR IN CONNECTION WITH THE USE OF THE APP. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS WARRANT THAT THE APP IS FREE FROM VIRUSES, WORMS, TROJAN HORSES, OR OTHER HARMFUL COMPONENTS. COMPANY AND ITS AFFILIATES AND LICENSORS CANNOT AND DO NOT GUARANTEE THAT ANY PERSONAL INFORMATION SUPPLIED BY YOU WILL NOT BE MISAPPROPRIATED, INTERCEPTED, DELETED, DESTROYED, OR USED BY OTHERS.
12. LIMITATION OF LIABILITY; CLASS ACTION WAIVER
YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE APP IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND THIRD PARTIES. THEREFORE, to the EXTENT NOT PROHIBITED BY LAW, YOU AGREE NOT TO HOLD COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS LIABLE FOR ANY DAMAGE, SUITS, CLAIMS, AND/OR CONTROVERSIES (COLLECTIVELY, “LIABILITIES”) THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR OR ANY OTHER PARTY’S USE OF OR INABILITY TO USE THE APP, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT, OR OMISSION OF ANY USER, ANY SERVICE PROVIDED BY COMPANY OR ITS AFFILIATES OR LICENSORS, AND ANY DESTRUCTION OF YOUR INFORMATION.
to the EXTENT NOT PROHIBITED BY LAW, UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, ITS LICENSORS (INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE THIRD PARTY OWNER FROM WHOM COMPANY HAS LICENSED APP CONTENT FOR USE WITHIN THE APP, AS APPLICABLE), OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME. IF, NOTWITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT COMPANY OR ITS PARTNERS, AFFILIATES, LICENSORS, OR ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED ONE HUNDRED ($100) DOLLARS.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU AND COMPANY AGREE THAT ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS, AND THAT NEITHER YOU NOR COMPANY WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH YOU OR COMPANY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. YOU AND COMPANY FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF YOU, COMPANY, AND ALL PARTIES TO ANY SUCH PROCEEDING.
13. MEDICAL RISKS WAIVER AND RELEASE
You understand AND ACKNOWLEDGE there are certain inherent risks and dangers in exercising and the classes you may attend offer a range of activity LEVEL and intensity level. By signing up for THE APP, you acknowledge and agree, on behalf of yourself, your heirs, and assigns, that you are aware of these risks which include, but are not limited to, property damage, illness, and bodily injury or death. You acknowledge that some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. You acknowledge and agree that it is your responsibility to consult with your physician prior to participating and to determine if and how participating in any class is appropriate for you.
Therefore, to the extent permitted by law, you release, indemnify and hold harmless COMPANY, ITS AFFILIATES, ITS LICENSORS, ITS PARTNERS, AND ANY OF SUCH PARTIES’ AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, CORPORATE PARTNERS, OR PARTICIPANTS, from AND AGAINST any and ALL losses, liabilities, damages, costs, or expenses (including reasonable attorneys’ fees and costs) arising out of or in any way related to your participation in or use of your membership or the APP, including with respect to bodily injury, physical harm, illness, death, or property damage.
15. GOVERNING LAW