Please Read These Terms of Service Carefully.
These Terms of Service form a legally binding contract between you and/or the company that you represent (“You” or “Company”) and Connected Fitness, LLC., or the applicable Affiliate (“Triib”, “we”, “our” or “us”). These Terms govern your access and use of the Services as defined below.
BY CHECKING THE ACCEPTANCE BOX OR ACCESSING OR USING ALL OR ANY PORTION OF THE SERVICES, INCLUDING SERVICES AT THIS SITE AND AT https://triib.com, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THESE TERMS ARE ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICES.
These Terms are effective (“Effective Date”) on the date which is the earlier of (a) your acceptance of these Terms, (b) your initial access to or use of the Services, or (c) the effective date of the first Order Document referencing this Agreement, if applicable.
NOTE: Use of the Services, including Content, is at Your and Your End Users’ sole risk as further described herein. Consult a physician or other healthcare professional before commencing fitness, health, strength training or wellness activities through these Services.
These Terms include the right to send emails, messaging and/or calls to You and Your End Users upon providing to Connected Fitness an email address, and/or a mobile or phone number. You are hereby consenting to receive recurring automated text messages, including SMS, or calls, and/or email for marketing purposes, from Connected Fitness or the applicable Affiliate.
These Terms include a class action waiver, which means that You, Company and each End User agrees to proceed with any dispute individually and not as part of a class action.
A. THE SERVICES
1. Scope of the Services.
The Services are comprised of a platform that includes business management software used for the purpose of aiding fitness studios, gyms, coaches, personal trainers and others with client management, scheduling and communication. Such businesses authorize End Users, as defined herein, to use the Services on the businesses behalf to assist them in instructing such authorized End Users on fitness, general health and wellness, individual workout plans and nutrition guides. The Services assist businesses, and their employees, affiliates and contractors, in creating and sharing User Content with authorized End Users. The Services also provide a forum for people to connect, inform and inspire others. Connected Fitness, or the designated Affiliate, will make the Services available to You, and Your End Users, subject to these Terms, including all Exhibits
2. Eligibility.
(a) No Minors. The Services are not directed at children. You must be at least 18 years of age to access or use the Services or create an account. You certify that you are at least 18 years old, if you are not, you may not register for or use the Services. If we learn that You or an End User under age 18 has access to or use of the Services, we may take steps to delete the account and all User Content, data and other information related thereto.
(b) Barred Persons. The Services are not available to any person or entity previously removed from the Services by Connected Fitness, or barred from accessing the Services under the Laws of the United States or any other jurisdiction.
3. Your Account.
(a) You may be required to create an account and specify a password in order to use the Services. To create an account, You must be eligible as specified in section 2, provide contact information, and submit any other form of authentication as determined by Connected Fitness in its sole discretion. You must provide truthful, accurate and current information in connection with your account. You are responsible for updating and correcting information you have submitted to create and/or maintain your account. Please don’t try to impersonate anyone else when You create your account. We may refuse to grant You an account with a name that impersonates someone else; or if the name is illegal, vulgar, or offensive; or if it may be protected by trademark or other proprietary rights, as determined by Connected Fitness in its sole discretion.
(b) You are solely responsible for Your and Your End Users’ accounts, and their interactions through the Services or outside the Services, including with other End Users of the Services. Connected Fitness is not responsible for the connections or disconnections between an employee’s, instructor’s, coach’s, or other End User’s account, including any loss of data or User Content.
(c) You are solely responsible for providing, maintaining and ensuring compatibility with the Services, including but not limited to, any hardware, software, electrical, telecommunications, internet access connections, web browsers, and other physical requirements for access and use of the Services.
(d) You are solely responsible for maintaining the security and confidentiality of your user identification, password used to access your account, and other confidential information relating to your account. You acknowledge and agree that Connected Fitness shall have no responsibility for any incident arising out of, or related to, Your account or account settings. You are fully responsible for all activities that occur under the account and any other actions taken in connection with it. You must immediately notify Connected Fitness of any suspected or actual unauthorized access or use of your account or password, or if applicable your End User’s account or password, and/or any other breach of security. If You notify us or if we otherwise suspect such activity, You agree to cooperate with us in any investigation and to use any prevention measures we prescribe.
4. Mobile Messaging and Calls.
You understand and agree that Connected Fitness, and its Affiliates, may contact you by telephone or text message (including by an automatic telephone dialing system and/or with an artificial or pre-recorded voice) for marketing and Services related purposes, at any of the phone or mobile numbers provide by You or on Your behalf in connection with Your account or use of the Services. You understand and agree that messages sent to Your mobile phone or device may be generated using automated technology. Your consent to receive ‘SMS’ or text messages is not required to use the Service. You also understand that You may opt out of receiving such messages or calls at any time. Connected Fitness does not charge you for sending or receiving text or ‘SMS’ messages. Your mobile carrier’s rates apply. Connected Fitness will not be liable for any delays in the receipt of any ‘SMS’ or text messages as delivery is subject to effective transmission from your mobile and/or network operator.
5. Services Communications.
You agree to receive certain communications in connection with the Services. When You use the Services or send communications, You are communicating with us or the End Users electronically. You hereby consent to receive electronically any communications related to Your use of the Services. We may communicate with You by email or by posting notices on the Service. You acknowledge and agree that all agreements, notices, disclosures and other communications that we provide to You electronically satisfy any legal requirement that such communications be in writing. Please note that by submitting Content, creating a user account or otherwise providing us with your email address, postal address or phone number, You are agreeing that Connected Fitness, its Affiliates and Third Party Service providers, may contact You at that address or number in a manner consistent with Connected Fitness’s Privacy Notice. If You send us any communications, those communications will not be deemed confidential information.
6. Monitoring.
Connected Fitness assumes no responsibility for monitoring the Services for inappropriate submissions or conduct, but reserves the right to do so. If at any time Connected Fitness chooses, in its sole discretion, to monitor the Services, Connected Fitness nonetheless assumes no responsibility for the Content, has no obligation to modify or remove any inappropriate Content, and has no responsibility for the conduct of the users submitting any such Content. Notwithstanding the foregoing, Connected Fitness shall have the right to remove any Content at any time, without notice and for any or no reason, including but not limited to, content that violates this agreement or is otherwise objectionable, in Connected Fitness’s sole discretion. In this regard, You acknowledge and hereby agree that You may not rely on any Content. Connected Fitness has no obligation to retain Content for any period of time, nor to make it available to You in the future.
7. Free, Trial or Beta Services.
Connected Fitness may make available to You free, trial or beta Services from time to time at no charge to You, in Connected Fitness’s sole discretion. These Terms apply to Your use of any Free, Trial or Beta Services. Any free, trial or beta Services are provided “As Is” with no warranties of any kind. Connected Fitness is not responsible for any of Your, or your End Users’ Data, including retention or return, when You or Your End Users’ use or access free, trial or beta Services. Connected Fitness may discontinue, or suspend your use of, any free, trial or beta Services at any time, with or without notice and without any further obligations or liability to You. Any free, trial or beta Services may also be changed to a Subscription with a Fee at Connected Fitness’s sole discretion, and upon prior notice to You. Upon such notice, Your right to continue to use such Services on a free, trial or beta basis shall cease on the earlier of the effective date specified in the notice or upon conversion to a Subscription with a Fee.
8. Services Changes.
We may modify, add, change, suspend, remove, or stop the Services, or any features or functionality, from time to time, in our sole discretion. We may choose to do so at any time without any notice to You. We may also change features or impose additional limitations as we deem appropriate.
9. Nonexclusive.
The rights granted to Company and its End Users hereunder are non-exclusive and nothing under this Agreement shall be deemed to prohibit Connected Fitness from entering into any agreement, license, services or other arrangement with any party anywhere in the world either during or after the Term.
10. Professional Services.
In the event You are also contracting for related professional services, any such professional services provided by Connected Fitness, or its affiliates, shall be specified in a statement of work that references these Terms.
B. YOUR RESPONSIBILITIES AND OBLIGATIONS
1. Consent.
You are responsible for ensuring that You have obtained the requisite level of consent necessary from Your Affiliates and End Users when utilizing the Services, including but not limited to, for marketing via text message and calls with automatic dialer, for email marketing, and in compliance with privacy Laws. You are responsible for ensuring that You have appropriate and lawful permission from all End Users to interact and/or contact such End Users through the Services in accordance with applicable laws and regulations.
2. Responsibility for Use of Services.
You are responsible for all use of the Services under these Terms. Company is further fully responsible for its Affiliates and its End Users use of the Services. Company will include appropriate terms and conditions in its agreements with its End Users that are at a minimum as restrictive as these Terms. Throughout the Term, Company will ensure compliance by its Affiliates and End Users with the relevant provisions of these Terms and all applicable Laws. You are solely responsible for Your own relationships and agreements with any and all End Users, and Connected Fitness has no responsibility or liability of any kind. Any references in these Terms to Company access or use of the Services is deemed to include access or use by its Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and End Users, as applicable.
3. Data.
You are solely responsible for the accuracy and quality of Your Data and for ensuring that Your collection, use, sharing, notice, consent and control of End User Data and your Data complies with all applicable privacy and data protection laws and regulations. You are solely responsible for any liability resulting from You or Your Affiliate’s handling of cardholder Data. Company agrees that it and its Affiliates will fully comply with PCI DSS whenever cardholder Data is processed.
4. Prohibited Activities.
By using the Services, You agree that You, and Your Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers and End Users, will not:
(a) use the Services for any purpose that is illegal or prohibited by these Terms or any applicable law.
(b) use the Services in a way that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services, or that could damage, disable, overburden, or impair the functioning of the Services.
(c) use any robot, spider, crawler, scraper, or other manual or automated means or interface to access the Services, retrieve, index, scrape, “data mine” or otherwise gather Content or extract other user’s information.
(d) use or develop any third-party applications that interact with the Services or other users’ content or information without our written consent.
(e) solicit login credentials from another user.
(f) use or attempt to use another user’s account, username, or password without their permission.
(g) impersonate Connected Fitness, any employee of Connected Fitness, another user, or any other person or entity or otherwise misrepresent any affiliation, endorsement, or sponsorship between You and Connected Fitness, and/or any other person or entity.
(h) upload viruses or other malicious code or otherwise compromise the security of the Services.
(i) attempt to circumvent any content-filtering techniques we employ, or attempt to access areas or features of the Services that You are not authorized to access.
(j) probe, scan, or test the vulnerability of our Services or any system or network.
(k) use the Services for any unauthorized purpose, including but not limited to, the purpose of building a competitive product or service or for similar competitive purposes.
(l) encourage or promote any activity that violates these Terms.
(m) use the Services or create or post any User Content that is in violation of the Content Restrictions specified herein.
(n) upload, transmit, send or cause to be sent any advertising or promotional material, including any spam, junk mail, chain letters, or similar solicitation without receiving prior affirmative consent from the End User.
(o) distribute (except for the purposes set forth above), rent, lease, transfer or otherwise transfer rights to, or in any way exploit, any content or material on the Services, in whole or in part.
(p) remove any proprietary notices or labels on any content or material on the Services.
5. Representations.
You hereby represent and warrant that: (i) You are eligible to use the Services and authorized to enter into this Agreement; (ii) all information provided by You is truthful, accurate and complete; (iii) You are the authorized signatory of the credit or charge card provided to us, or our payment services provider, to pay the Fees; (iv) You shall comply with all terms and conditions of this Agreement; (v) You are in compliance with all applicable US and international Laws; and (vi) You have provided and will provide accurate and complete registration information, including, without limitation, your full legal name, address and telephone number.
C. USER CONTENT
1. Content You Post.
We may provide opportunities for You, and/or your Affiliates, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and End Users to upload or post original fitness, wellness and health related text photographs, videos, contact and location information, communications, or other content (collectively “User Content”) on the Service. You do not transfer ownership of User Content simply by posting or uploading it. You acknowledge and agree that any User Content posted on the Service may be seen and used by others, and is available to the public. You understand that by posting User Content you have no expectation of privacy for such User Content. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONAL INFORMATION OR OTHER USER CONTENT PUBLICLY AVAILABLE ON OR THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK.
2. Sole Responsibility.
You can only post User Content if You own all rights to that User Content, or if another rights holder has given you permission. You represent and warrant that You own the User Content uploaded or posted by You or on Your behalf on the Services. You acknowledge that any disputes regarding ownership of any User Content that has been uploaded to the Services is between You and the End User or third party licensor, and Connected Fitness has no responsibility or liability related thereto. You understand and hereby agree that all User Content is Your and Your End Users’ sole responsibility (as applicable). Company, and each End User who submits User Content, has sole responsibility for the accuracy, quality, integrity, completeness, timeliness, legality, reliability and appropriateness of all User Content posted or uploaded on the Service. Connected Fitness provides no guarantees or warranties that other users will not misuse Your User Content. Connected Fitness is under no obligation to host, store or publish User Content through the Services, or to continue to host, store or publish User Content. Under no circumstances shall Connected Fitness be liable in any way for any User Content including, but not limited to, any errors, inaccuracies, misuse, misappropriation, omissions, and/or loss of any User Content, or for any liability, claim, actions, harm, cost, judgment, proceeding, expense (including attorneys’ fees and costs), or damage of any kind (collectively, “Losses”) incurred as a result thereof.
3. License.
By uploading or posting any User Content to or through the Services, You hereby grant to Connected Fitness, its affiliates, subsidiaries, partners, contractors, licensors and assigns, a worldwide, irrevocable, perpetual, nonexclusive, assignable, sublicensable, royalty free and transferable right and license to reproduce, encode, store, copy, transmit, publish, post, broadcast, display, publicly perform, distribute, adapt, modify, create derivative works of, disclose and use User Content in connection with the Services and Connected Fitness’s business through all media now known or hereinafter developed, including for the purpose of promotions and marketing. You specifically waive any “moral rights” in and to the User Content. Without those rights, we could not offer our Services. Please note that this license continues even if you stop using our Services.
4. Content Restrictions.
User Content posted on the Service shall not contain inappropriate material as determined by Connected Fitness in its sole discretion, including but not limited to (collectively “Content Restrictions”):
(a) Unlawful content in violation of any federal, state, or local laws or regulations, or violates the rights of any other person or entity, including infringing any intellectual property laws;
(b) harmful, defamatory, threatening, offensive, inaccurate, abusive, harassing, or otherwise inappropriate language, including without limitation, bigotry, racism, discrimination, hatred, or profanity;
(c) pornographic, graphic or objectionable, including but not limited to nudity and depiction of drug use;
(d) comments that do not address the content, reviews, ratings or contains no qualitative value;
(e) information about illegal activities, physical harm or injury to any group, individual, institution or property;
(f) personal attacks, physical confrontations and/or sexual harassment;
(g) advertising, promotional materials, or information commercial in nature, or inappropriate based on the applicable subject matter;
(h) language intended to impersonate other users (including names of other individuals) or offensive or inappropriate user names or signatures;
(i) viruses, trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information; and/or
(j) medical, mental or emotional diagnosis, advice or treatment, emotional advice, dietary advice, or personal advice of any kind.
D. SUBSCRIPTIONS
1. Subscriptions.
The current Subscriptions, including their related Term and Fees, can be found on our Website, unless it is otherwise stated in an Order Document. Subscriptions, the Term (as provided for in section J1 and J2 below) and Subscription Fees may change from time to time at Connected Fitness’s sole discretion.
2. Fees.
We charge a subscription fee when You select a Subscription for access and use of the Services (“Subscription Fees“), except for free, trial or beta Services. Subscription Fees are set forth on the applicable Website(s), unless there is an Order Document. Subscription Fees must be paid in advance of each Term, including Renewals (as provided in section J2 below). From time to time, Connected Fitness may change the pricing or fees applied by third parties that relate to the Services, such as card scheme fees and/or interchange.
3. Payment Terms.
You agree to pay Connected Fitness the Subscription Fees, and any other applicable fees, for the Subscription You selected as specified on the Website during the registration process or in the applicable Order Document. You are responsible for all Subscription Fees for the entire Term you selected. All Fees, Taxes (as defined herein) and other charges will be billed to your credit or charge card in US Dollars. You hereby grant us permission to process the applicable payments. You agree to promptly pay Connected Fitness in the event of any refusal of your credit card issuer to pay any amount to Connected Fitness for any reason.
4. Past Due Charges.
Any unpaid Fees by the applicable due date may accrue interest and charges at the lesser of 1.5% of the outstanding balance per month or the maximum interest rate permitted by Law. On any outstanding balance not received by the due date, You agree to pay the costs of collection, including attorney’s fees and costs. In the event You fail to pay any amount when due, Connected Fitness may immediately suspend or terminate this Agreement and your access to the Services.
5. Taxes.
Subscription Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes assessable by any jurisdiction (collectively “Taxes”). You are responsible for and shall pay all Taxes associated with purchases of Services, Subscriptions, or any other transactions under these Terms, whether imposed now or hereinafter by any governmental entity.
6. No Refunds.
All Subscription Fees are noncancelable and non-refundable for the entire Term. There will be no refunds or credits for partial use of the Services, upgrade/downgrade refunds, nor refunds for months unused with an active account. You are responsible for all Fees of any Renewals relating to Your account until such time as your account or these Terms are terminated as specified herein.
E. PRIVACY
1. Connected Fitness Privacy Notice.
Connected Fitness processes Personal Data in connection with its obligations and rights under these Terms, including the Privacy Notice, or as otherwise instructed by You or required by law. Company shall comply with the terms and conditions contained in the Connected Fitness Privacy Notice
2. Company Privacy Notice.
Company is responsible for maintaining, posting, and adhering to its own privacy notice that explains to End Users how their personal data will be used by the Company in connection with its use and its authorized End Users’ use of the Services, including that such authorized End Users’ personal data will be processed by Connected Fitness, its affiliates and Sub-Processors and by Third Party Service Providers, on behalf of Company. Your privacy statement shall comply with all applicable Laws and shall be posted on a website reasonably available to End Users. Failure by Company to post a privacy statement, or Company’s non-adherence to such privacy statement, is grounds for immediate termination by Connected Fitness of Your account and these Terms.
Company shall (i) ensure that all individuals, including End Users, whose Personal Data is shared with Connected Fitness by them or by Company, have received all legally required notifications at or before the point of collection of such Personal Data; (ii) where legally required, ensure that consent of the individual, including End Users, is properly received and logged; and (iii) provide evidence of such consent, where required, to Connected Fitness upon request. Company represents and warrants that it has notified End Users of Company’s processing of their Data, including directing End Users to Company’s privacy statement, and obtained consents or established other lawful grounds to process End User Data in connection with the Services, including as necessary to share End User Data with Connected Fitness, its affiliates, Sub-processors and Third Party Service providers. Company further represents and warrants that it has obtained all consents as required for Connected Fitness, its affiliates, Sub-processors,or its Third Party Service providers, to process personal data on behalf of Company in connection with the Services. Company acknowledges that Connected Fitness may aggregate, de-identify, anonymize, and/or pseudonymize Data for the purposes set forth in these Terms. Connected Fitness may be required to process, including retain, Data of End Users for the purposes of complying with applicable Laws and exercising legal rights. In such limited circumstances, Company acknowledges that Connected Fitness will act as a controller.
3. Security.
Connected Fitness will implement commercially reasonable technical and organization measures for the Services designed to protect Personal Information against accidental or unlawful destruction, loss, alteration, disclosure or access.
F. PROPRIETARY RIGHTS AND LICENSES.
1. Ownership and Reservation of Rights.
The Services, including the software and Connected Fitness Content, are proprietary to Connected Fitness, or its applicable affiliates, licensors or Third Party Service providers. All right, title and interest in Connected Fitness intellectual property, including but not limited to the Services and Connected Fitness Content, remains the exclusive property of Connected Fitness, its affiliates, licensors or Third Party Service providers. The Services, including the software, is copyrighted and protected by the laws of the United States, and international intellectual property treaties. Connected Fitness, and its affiliates, name, logo, brands or other trademarks or service marks, may not be copied, imitated, and/or used without Connected Fitness, or the applicable affiliate’s written permission. No rights are granted to You hereunder except for the limited license granted below.
2. License.
Subject to the timely payment of all Subscription Fees and Your compliance with these Terms Connected Fitness grants You a limited, personal, nontransferable, nonexclusive, revocable right (without the right to sublicense) to access and use the Services. You agree NOT to reproduce, distribute, create derivative works from, publicly display, publicly perform, license, sublicense, sell and/or resell the Services, or any content, software, products and/or service obtained from or through the Service.
G. DMCA COPYRIGHT POLICY AND COPYRIGHT AGENT
Connected Fitness respects the intellectual property rights of others and expects you to do the same. The notification process outlined here is consistent with the process suggested by the Digital Millennium Copyright Act (“DMCA”) (which can be found at the U.S. Copyright Office Web Site, http://www.copyright.gov). We reserve the right to block access to and/or attempt to remove material that we believe in good faith to be copyrighted material that has been illegally distributed by You and/or other third parties, and to remove and discontinue service to repeat offenders. We require the following information in your notice of copyright infringement:
(a) a physical or electronic signature of the owner of the copyright (or a person authorized to act on behalf of the owner);
(b) sufficient detail about the copyrighted work claimed to have been infringed;
(c) identification of the URL or other specific location on our websites that contains the material that you claim infringes your copyright;
(d) your name, mailing address, telephone number and email address;
(e) a statement by you that you have a good faith belief that such disputed use of the copyright materials is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notice is accurate, and you attest under penalty of perjury, that you are the copyright owner or that you are authorized to act on behalf of the copyright owner.
H. FEEDBACK; SUBMISSION OF IDEAS
Our policy is to not accept, review, or consider unsolicited ideas, original creative artwork, suggestions, improvements, feature requests or other communications (including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans, new artwork or other works, or new product names) (collectively, “Feedback”). Any Feedback that is offered or communicated to us is voluntary and shall be the property of Connected Fitness without any compensation to You. Feedback will not be considered confidential information. If You choose to give us Feedback, Connected Fitness reserves the right to reproduce, use, disclose, distribute, or otherwise act on such Feedback without any obligation to You.
I. TERM, TERMINATION AND SUSPENSION.
1. Term.
(a) Agreement. This Agreement commences on the Effective Date, as defined herein, and continues until i) all Subscriptions hereunder have expired or ii) terminated pursuant to this Agreement.
(b) Term of Subscription. The term of each Subscription shall be as specified on the applicable Website or Order Document. The term begins on the Effective Date, as defined herein, and continues until the Subscription You selected on the Website during the registration process or specified in the applicable Order Document expires or has been terminated (“Initial Term”).
2. Renewals.
Except as specified in an Order Document, each Subscription will automatically renew for additional periods equal to the expiring Initial Term or one year (whichever is shorter) (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party gives the other written notice as specified herein of termination thirty (30) days before the end of the Initial Term or Renewal Term whichever is applicable. Notice of nonrenewal to Connected Fitness should be sent to info@connectedcommunity.fitness. Notwithstanding any provision to the contrary, any Renewal Term will be subject to re-pricing of Subscription Fees for such renewals at Connected Fitness’s then-current rates.
3. Termination By You.
The Initial Term and each Renewal Term are noncancelable unless otherwise specified on the Website or in the applicable Order Document. You may stop using the Services at any time, however You will remain responsible for payment of all fees, including unpaid Subscription Fees, owed for the entire Term.
4. Termination for Convenience.
Either party may terminate this Agreement for any reason or no reason, by giving the other party at least thirty (30) days notice before the end of the Initial Term or any Renewal Term. If You terminate for convenience, You must immediately pay any unpaid Subscription Fees associated with the Initial Term or any Renewal Term. Connected Fitness will not be obligated to refund or provide a credit for partial use of the Services.
5. Termination for Cause.
Connected Fitness may terminate for cause (i) these Terms, in whole or in part; (ii) the Term of any Subscription; and/or (iii) terminate or suspend access and use of Your or any End User’s account, effective immediately upon notice to You, and/or the End User. In the event of termination pursuant to this section I(5), in addition to other amounts you may owe Connected Fitness, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Term.
6. Effect of Termination.
Upon any termination or expiration of this Agreement, or any subscription Term, You shall immediately cease any and all use of and access to the Services, and destroy or, at Connected Fitness’s request, return, any Connected Fitness confidential information in your possession. You acknowledge that You shall have no further access to Content or Data, including any End User Data input into the Services, and that Connected Fitness may delete any such Data at any time.
J. INDEMNITY
You hereby agree to defend, indemnify and hold harmless Connected Fitness, its officers, directors, employees, affiliates, subsidiaries, agents, licensors, suppliers, and Third Party Service providers (“Connected Fitness Entities”) from and against all Losses arising directly or indirectly out of your or your End Users: (a) use or misuse of the Services; (b) breach or alleged breach of any of these Terms (including any Additional Terms); (c) violation of applicable Laws; (d) any User Content; or (e) breach or alleged violation, infringement or misappropriation of any patent, copyright, trademark, proprietary or other rights of third parties with respect to any User Content You or your End Users upload or post to the Services.
K. DISCLAIMER
WE PROVIDE OUR SERVICE USING A COMMERCIALLY REASONABLE LEVEL OF CARE. HOWEVER, WE DO NOT MAKE ANY COMMITMENTS ABOUT THE CONTENT, INCLUDING USER CONTENT, THE SPECIFIC FUNCTION OF THE SERVICES, ITS QUALITY, RELIABILITY, AVAILABILITY, SECURITY OR ABILITY TO MEET YOUR OR YOUR END USERS’ REQUIREMENTS. WE DO NOT WARRANT THAT THE SERVICE WILL BE ERROR-FREE. ACCORDINGLY, YOU UNDERSTAND THAT YOUR USE OF THE SERVICE AND CONTENT IS AT YOUR SOLE RISK, AND THE SERVICE, INCLUDING THE USER CONTENT, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
L. LIMITATION OF LIABILITY AND DAMAGES
TO THE FULLEST EXTENT PERMITTED BY LAW, CONNECTED FITNESS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR, OR YOUR END USERS’, USE OF OR INABILITY TO USE THE SERVICES, USER CONTENT, OR THIRD-PARTY SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF USER CONTENT, LOSS OF PRIVACY OR SECURITY, UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR USER CONTENT, INTERRUPTION OF BUSINESS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF CONNECTED FITNESS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF WARRANTIES OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT ALLOWED BY LAW, CONNECTED FITNESS’S ENTIRE LIABILITY UNDER THE AGREEMENT SHALL NOT EXCEED THE GREATER OF (I) THE AMOUNT ACTUALLY PAID BY YOU TO CONNECTED FITNESS UNDER THE AGREEMENT IN THE TWO (2) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR (II) US $100.
M. INFORMATIONAL PURPOSES ONLY
1. Information, materials and Content contained in the Services is for informational use only. Nothing contained in the Services, including its Content, is intended to be a substitute for, nor does it replace, professional healthcare or wellness advice, diagnosis or treatment. YOU AND YOUR END USERS UNDERSTAND THAT PARTICIPATING IN ANY EXERCISE PROGRAM OR DIET CAN RESULT IN PHYSICAL INJURY. Please consult with a physician or other qualified health care professional before starting or performing any exercise, strength training, diet, fitness program, health or wellness program. CONNECTED FITNESS IS NOT A LICENSED HEALTHCARE PROVIDER. It is your and your End Users responsibility to evaluate your own medical and physical condition and to independently determine whether to perform, use or adapt any of the information provided through this Service. If You have any concerns or questions about your health or the Content on the Service, You should always consult with a physician or other healthcare professional. Do not disregard, avoid or delay obtaining medical or health related advice from your healthcare professional because of something You may have viewed on the Service. Connected Fitness does not recommend or endorse any Content, products, advice, Links, Third Party Services or information that may be available through the Services. The use of any such information provided through the Services is solely at your own risk.
2. The Content and other information contained on the Services may be compiled from a variety of sources, including Third Party Service providers. Neither Connected Fitness nor any Third Party Service providers directly or indirectly practice medicine or dispense medical services as part of the Services. Our policy does not allow medical advice, emotional advice, dietary advice, or personal advice of any kind. These concerns should be addressed and discussed with a physician, health care provider, family nutritionist, registered dietitian, or other professional.
3. YOU ACKNOWLEDGE, AND MUST ENSURE THAT YOUR END USERS ACKNOWLEDGE, THAT CONNECTED FITNESS AND ITS AFFILIATES, ARE NOT ENGAGED IN THE PRACTICE OF MEDICINE AND THAT ALL DECISIONS MADE WILL BE YOUR (OR YOUR END USERS) EXCLUSIVE RESPONSIBILITY. CONNECTED FITNESS EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY ADVERSE CONSEQUENCES OR DAMAGES RESULTING FROM YOUR (OR YOUR END USER’S) RELIANCE ON THE SERVICES, THE CONTENT OR ANY INFORMATION PROVIDED THEREFROM.
N. DISPUTES; ARBITRATION
PLEASE READ THIS PROVISION CAREFULLY; IT INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS OR PROCEEDINGS ARE NOT PERMITTED. YOU HEREBY WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST CONNECTED FITNESS.
YOU AND CONNECTED FITNESS HEREBY AGREE THAT YOU AND CONNECTED FITNESS EACH WAIVE ANY RIGHT TO A JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN US.
In no event shall any claim, action or proceeding by You related in any way to these Terms be instituted more than two (2) years after the cause of action arose.
O. EXPORT CONTROL
Company, and its End Users, acknowledge that the Services, software, and other Connected Fitness technology and derivates thereof, may be subject to United States export control and economic sanctions restrictions, laws and regulations. Company agrees that all use, exports, and imports related to the Agreement will be in compliance with these restrictions, laws and regulations. Company will not, and will not permit any End User or any other third party, to access, use, transfer, import, or download directly or indirectly, the Services, Content, software, technology or any other materials associated with the Services, into any embargoed or terrorist-supporting country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), to anyone on or deemed to be covered by, the Consolidated Screening List at https://www.bis.doc.gov/index.php/policyguidance/lists-of-parties-of-concern, or otherwise in violation of any U.S. export law or regulations. Company represents that it is not named on any U.S. government denied persons list.
P. ADDITIONAL TERMS
Your use of the Services may be subject to additional terms and conditions (“Additional Terms”). These Additional Terms will be presented to You with the relevant Service and will become part of your agreement with us, if You choose to use those Services. Additional Terms may also apply for promotions, sweepstakes, contest, giveaways, or similar programs. If these Terms are inconsistent with any Additional Terms, the Additional Terms will control with respect to the Service that it applies.
Q. MISCELLANEOUS
1. Notice. Except as otherwise expressly provided herein, all notices related to these Terms shall be in writing. You consent to receive communications and notices from Connected Fitness electronically. Connected Fitness will communicate with You, at its discretion, by e-mail, live chat, or by posting notices electronically through the website or the Services. You agree that all agreements, notices, disclosures and other communications that Connected Fitness provides to You electronically satisfy any legal requirement that such communications be in writing. Except as otherwise provided herein or on the Website, all notices to Connected Fitness must be sent to Connected Fitness Technologies, c/o Mariana Tek, Attn: General Counsel, 1717 K St. NW, Suite 1100, Washington, DC 20006.
2. Governing Law, Jurisdiction, and Venue. These Terms, and any dispute or lawsuit arising out of or related to this Agreement, shall be governed by and construed under the laws of the State of New York, U.S. without regard to choice or conflicts of law rules. You agree that any legal action or proceeding between Connected Fitness and You for any purpose relating to this Agreement shall be submitted to the exclusive jurisdiction of the courts of New York, New York. Nothing in this section shall restrict Connected Fitness’s right to bring an action (including for example a motion for injunctive relief) against You in the jurisdiction where You are located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
3. Government End Users. The software in the Services is commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited. Company will identify to Connected Fitness if an End User is an official, agency, department, or other entity of any government other than the United States Government.
4. Severability. If any provision of this agreement is held by a court of competent jurisdiction to be unlawful, void or unenforceable, that provision shall be limited to the minimum extent necessary so that the agreement shall otherwise remain in effect.
5. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
6. Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties.
7. Press Release and publicity. At the request of Connected Fitness, Company agrees to the issuance of a press release on a mutually agreed upon date. Company further agrees to allow Connected Fitness to list Company’s name and logo on its Website and in Connected Fitness’s marketing materials, if Connected Fitness so chooses.
8. Revisions, Amendments. We may at any time, and from time to time, revise, update, change or modify this Agreement, including but not limited to, these Terms, any Additional Terms, or the Privacy Notice, at our sole discretion. The “Last Updated” date at the top of these Terms shall indicate when the latest modifications were made. It is your obligation to check the Services for any changes or updates to the Services, including these Terms, therefore You should visit the Services regularly. Revisions we make will become effective when we publish a modified version to the Services and/or our Website. If we make material changes to the Terms, we will notify You. If You continue using the Services after any revisions have been published, You will be deemed to have accepted such revisions. If You do not agree to the changes, then You must stop using the Services, and You can terminate your account as further described in these Terms.
9. Entire Agreement. This Agreement constitutes the entire, complete and exclusive agreement between You and Connected Fitness regarding your and your End Users’ use of the Services and Content, and supersedes all prior and contemporaneous agreements and understandings with respect to the subject matter of this agreement.
EXHIBIT A
DEFINITIONS
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with that party. “Control” for purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests, whether through equity, ownership, a credit arrangement, franchise agreement or other contractual arrangement. In the case of Company, it also includes any of your business locations and any Franchisees that have been designated to receive Services under this Agreement.
“Agreement” means these Terms, the Connected Fitness Privacy Notice, any applicable Terms of Use, any Additional Terms, any related policies, guidelines or documentation.
“Cardholder Data” means credit card numbers, CVV, expiration dates, billing address, and cardholder name as entered by You and End Users.
“Company” means in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates).
“Connected Account Agreement” means a Stripe Connected Account Agreement entered into between Client, or Client’s Affiliates and/or Client’s Franchisees, and Stripe and as updated from time to time. The applicable agreement is located at https://stripe.com/[Country Code]/connect/account-terms“ where “[Country Code]” is the two letter code for the jurisdiction in which Your Connected Account (as defined in the Connected Account Agreement) is located
“Content” means Connected Fitness Content, content from Third Party Services, and User Content.
“Data” means all data, including Personal Information, information or other material provided or submitted or made available by You or an End User, that You or an End User provides or submits to the Services. Data may include Cardholder Data and such portions of your Data that relates to specific End Users. This excludes aggregated data.
“End User(s)” means individuals or entities authorized by the Company to access or use the Services including but not limited to, Company’s Affiliates, franchisees, staff, employees, contractors, consultants, advisors, independent coaches or trainers, and clients. References herein to the term You includes End Users.
“Fees” means Subscription Fees and any other applicable fees charged to You by Connected Fitness under this Agreement.
“Franchisee” means any party that is bound by a franchise agreement with Company, and that Company has designated to receive Services under this Agreement. Franchisees are bound by the terms of this Agreement as if they were an original party hereto.
“Order Document” means any order on a Connected Fitness order form which references this Agreement. Each Order Document which references this Agreement shall be deemed a part of this Agreement.
“Personal Information” means data that relates to or about an identified natural person or, where applicable, household as defined under relevant law, which is provided by You or on your behalf, and that we process on your behalf, pursuant to the Agreement. This may include information such as name, postal address, telephone number, email address, or unique online identifiers.
“Service(s)” means any platform, website, application, materials, documents, content, data or services offered by Connected Fitness, or its Affiliates. Services excludes Third Party Services.
“Stripe” means Stripe, Inc or an Affiliate of Stripe, Inc, an approved third party payment processor.
“Subscription” means any Services selected by You that are made available by Connected Fitness on a subscription basis for a set term as designated on the applicable Website or in the applicable Order Document.
“Sub-Processors” means third party organizations that Connected Fitness engages for the processing of the Personal Information and which do not act under Connected Fitness’s direct authority.
“Website” means https://connectedcommunity.fitness or https://triib.com/
“You” means Company and/or its End Users.