Terms and Conditions of Use Agreement
This Terms and Conditions of Use Agreement ("agreement") is a binding, legal contract between you and Dynamic Fitness, LLC, also known as Dfit ("we" or "us"). This agreement governs your Account with us and your use of our website ("site").
2. Account Registration; Account Settings; Passwords
(A) Age Restrictions. You may not create an Account unless you are 16 years of age or older.
(B) Your Account Information. By submitting a registration form or creating a password on the Site, you represent to us that (a) you meet the age restriction and (b) the information you have provided us ("Account Information") is true, accurate, current and complete. You will maintain and promptly update your Account Information through the Site to keep it true, accurate, current and complete.
(C) Passwords. You are responsible for maintaining the confidentiality of your password, and you are not permitted to share or disclose your password to anyone else. You will be solely responsible for the activities of anyone accessing the Site using a password assigned to you, even if the individual is not, in fact authorized by you. If you have reason to believe that your password has been compromised or used without authorization, you must promptly change it, using the functionality provided on the applicable Site, and notify us.
(D) Permitted Uses. Use of your Account is limited to your own, personal, noncommercial use only.
3. Payment; Termination by You; Renewal
(A) You will be required to pay the fees for your Account as required under the terms of the plan that you select prior to obtaining access to your Account. Access in all instances depends on maintaining payments current.
(B) All plans automatically renew unless you terminate your Account before your plan is scheduled to renew. You are free to terminate your Account at any time by notifying us, although we will not provide any refund upon termination. You will continue to have access to your Account after you have terminated your Account until the expiration of so much of your plan's term that is paid in full.
4. Term; Termination by Us
(C) Other Termination. We have the right to close your Account and to cease providing Services to you at any time for any reason or no reason at all. If we terminate the Services, we will provide you with a pro rata refund for the remaining portion of the term of your Account.
5. The Content of the Site Is Not Medical Advice; You May Suffer Injury or Death.
WE ARE NOT DOCTORS. WE DON'T ASSOCIATE DOCTORS. WE BELIEVE IN THE HEALTH BENEFITS OF EXERCISE GENERALLY, BUT WE DON'T KNOW HOW YOU WILL REACT TO ANY EXERCISE PLAN PARTICULARLY, AND WE ASSUME NO RESPONSIBILITY FOR THE EFFECT OF THIS OR ANY EXERCISE REGIME ON YOU. ANY EXERCISE CARRIES INHERENT RISK OF INJURY, INCLUDING DEATH, THAT IS UNAVOIDABLE, REGARDLESS OF DUE CARE, YOURS OR OURS. YOU REMAIN ENTIRELY RESPONSIBLE FOR YOUR OWN HEALTH. WE RECOMMEND, BEFORE EMBARKING ON THIS OR ANY EXERCISE OR FITNESS REGIME, THAT YOU CONSULT A PHYSICIAN OF YOUR CHOOSING AND FOLLOW HIS OR HER MEDICAL ADVICE. NOTHING WE PROVIDE THROUGH THE SITE, INCLUDING ANY AND ALL CONTENT, SERVICES, FITNESS ADVICE, WORKOUTS, TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, OR OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER ACCOUNT HOLDERS OR THIRD PARTIES, IS INTENDED TO SUBSTITUTE FOR OR CAN SUBSTITUTE FOR (A) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (B) CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (C) THE INFORMATION REQUIRED TO UNDERSTAND ANY MEDICATION OR SUPPLEMENT OR OTHER PRODUCT THAT YOU MAY INGEST OR USE WITH RESPECT TO YOUR BODY, INCLUDING INFORMATION CONTAINED IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTHCARE RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THIS SITE, AND YOU SHOULD NOT USE OUR CONTENT FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS FAILS TO CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT, OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND US. WE ARE NOT HEALTH CARE PROVIDERS, WE WILL ACQUIRE NO INFORMATION FROM YOU IN THE COURSE OF PROVIDING HEALTH CARE, AND WE ARE NOT A COVERED ENTITY FOR THE PURPOSES OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 (HIPAA).
7. Additional Terms and Click-Through Agreements
(A) User Content. The Site may feature ways for our users to post, upload, transmit through or otherwise make available ("post") User Content including text, images, illustrations, graphics, workout and other data, audio, video or audio-video clips, or other materials on or through the Site ("User Content").
(B) Prohibited Content. You may not post User Content on or through the Site that:
is patently offensive and/or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; harasses or advocates harassment of another person; exploits people in a sexual or violent manner; contains nudity, violence, or offensive subject matter;
provides any telephone numbers, street addresses, last names or email addresses of anyone except yourself; promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; violates any intellectual property or other proprietary right of any third party, including User Content that promotes an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files; involves the transmission of "junk mail," "chain letters," or unsolicited mass mailing, instant messaging, "spimming," or "spamming"; contains restricted or password only access pages or hidden pages or images (those not linked to or from another accessible page); furthers or promotes any criminal activity or enterprise or provides instructional information about illegal activities including, but not limited to making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; solicits passwords or personal identifying information for commercial or unlawful purposes from other members; involves commercial activities and/or sales without our prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; includes a photograph of another person that you have posted without that person's consent or, in the case of children under the age of eighteen, parental consent, or otherwise constitutes an invasion of an individual's privacy or infringement of publicity rights; or contains a virus or other harmful component.
(C) Responsibility for User Content. You are responsible for all User Content you post to the Site and for adjusting the Account settings that permit you to display your User Content on the Site, where applicable. Posting User Content via the Internet inherently poses the risk of unintended disclosure and access by third parties, and we will not be liable for such disclosures. We are not responsible for and do not control User Content, and, therefore, we do not guarantee the accuracy, integrity or quality of any User Content. You understand that by using pages of the Site on which other users may post User Content, you may be exposed to User Content that you deem offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any User Content, including, but not limited to, any errors or omissions in any User Content, settings viewing errors, or any loss or damage of any kind incurred as a result of the use of any User Content posted on or through the Site.
(E) Ownership of Your Content. We do not claim ownership rights in User Content. Subject to the non-exclusive license contained in the following paragraph, you own and will retain any and all intellectual property rights that you may have in your User Content.
(F) License to Use Your Content. By posting your Content on or through the Site, you hereby grant us a non-exclusive, fully-paid, royalty-free, perpetual, irrevocable, worldwide license (including the right to sublicense) to use, copy, publicly perform, publicly display, distribute, and create derivative works based on your Content. You may contact us to request that your User Content be removed from the Site. We cannot guarantee the complete deletion of your User Content and copies thereof, especially on message boards, blogs or other community pages. Back-up or residual copies of any User Content that we remove may remain on our servers after the User Content has been removed from view, and we retain all rights granted in this paragraph to all such remaining copies.
(G) Access to Your User Content Following Termination of Your Agreement. Upon termination of your account, you no longer will have access to your content in our possession. You are advised to maintain copies of any User Content for which you may want continued access.
(H) Your Warranties Regarding Your User Content. By posting your User Content via the Site, you represent and warrant that (i) you own all right, title and interest in your User Content, or otherwise have the right to grant the license set forth in preceding paragraph, and (ii) the posting of your User Content on or through the Site does not violate the privacy rights, publicity rights, copyrights, trademarks, patents, trade secrets, contract rights, confidentiality, or any other rights of any third party.
9. Ownership of Site and Content
(A) User Content. As between you and us, we own and reserve all rights, title and interests in the Site, including all of the software and code that constitute and operate the Site, and all of the Content on the Site except User Content. The Site and any Content we and others provide are protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Content of each Site is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of the Content of each Site.
(D) Claims of Copyright Infringement. If you have reason to believe any part of the Content of the Site infringes the copyrights of you or of others, please notify us immediately. It is our policy to investigate any allegations of copyright infringement brought to our attention. We reserve the right in our sole discretion to immediately suspend and/or terminate access to any Site by any user who is alleged to have posted infringing materials or a link to infringing materials on the Site and to immediately remove or disable the allegedly infringing Content or link.
(E) Ownership of Trademarks. The trademarks and service marks used or displayed on the Site ("Trademarks") are registered and unregistered marks of ours, of our licensors, or of affiliates. You may not use any marks displayed on the Site without the prior express written permission of the mark owner or us.
10. Your Feedback
We welcome your comments, feedback, suggestions, and other communications regarding the Site and the information and services we make available through the Site (collectively, "Feedback"). The Feedback you provide to us through the Site will be and remain our exclusive property. Your submission of Feedback will constitute an assignment to us of all worldwide rights, title and interests in your Feedback, including all copyrights and other intellectual property rights in your Feedback. We will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, we ask that you not send us any Feedback that you do not wish to assign to us.
11. Third-Party Sites
The Site may contain links to websites operated by other entities. If you decide to visit any linked site, you do so at your own risk and it is your responsibility to take all protective measures to guard against viruses or other destructive elements. We make no warranty or representation regarding, and do not endorse, any linked websites or the information appearing thereon or any of the products or services described thereon.
1. Warranties; Disclaimer.
(A) We will use commercially reasonable efforts to provide you the Services relating to your Account during the term of your Account in accordance with our current description of Services applicable to your Account. This is the sole warranty we provide. In the event of any breach of this warranty, please notify us. We will repeat such Services that fail to meet this warranty, provided that you notify us in within thirty (30) days of the alleged breach. The foregoing remedy will be your sole and exclusive remedy with respect to any failure of the Services to meet this warranty.
(B) EXCEPT AS EXPRESSLY PROVIDED HEREIN, WE HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, OUR CONTENT, AND ALL SOFTWARE, PRODUCTS OR SERVICES DESCRIBED ON OR AVAILABLE THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
2. Limitation of Liability
(A) To the fullest extent permitted by applicable laws we, on behalf of our employees, agents, suppliers, contractors, and any other entity in any way introduced to you through this Site, exclude AND DISCLAIM liability for any losses and expenses of whatever nature and however arising including, without limitation, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), arising out of or in connection with the use of the SERVICES AND THE SITE, or otherwise RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES OR THE SITE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS AND SERVICES RESULTING FROM ANY GOODS, CONTENT, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS, CONTENT OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (v) ANY OTHER MATTER RELATING TO THE SITE. You assume total responsibility for establishing such procedures for data back up and virus checking as you consider necessary. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS.
(B) IF ANY PART OF THIS LIMITATION ON LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY (AND ANY OTHER PERSON OR ENTITY WHOSE LIABILITY WOULD OTHERWISE HAVE BEEN LIMITED) FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED WILL NOT EXCEED THE AMOUNT YOU PAID FOR YOUR ACCOUNT IN THE YEAR IMMEDIATELY PRECEDING THE CLAIM.
4. International Use
If you access the Site from outside the United States, you will comply with all local rules regarding your use of the Site.
5. Jurisdictional Issues
(A) Notice. We will send you notices via e-mail or regular mail. We may also display notices or links on the Site as described in these Terms of Service.
(E) Captions. The captions of each section are added as a matter of convenience and are not to be granted undue consideration in the construction of this agreement.
(F) Attorneys' fees. If any party brings any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party may recover against the other party, in addition to all court costs and disbursements, reasonable attorneys' fees.
(H) Waiver. Failure to insist upon strict compliance with any of the terms, covenants and conditions hereof will not waive such terms, covenants and conditions, nor will any waiver or relinquishment of any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times. No waiver will be valid unless in writing and signed by an authorized officer of us.