TERMS OF SERVICE

Last Updated and effective as of January 22, 2016

 

1.         Acceptance of Terms

In this agreement, “fitli” and “we” mean fitli, Inc., and “user” and “you” mean any user of the Services. This agreement incorporates fitli's standard policies, procedures, and terms and conditions for use of the Services that are referenced by name or by links in this agreement (collectively, the “fitli policies”).  By accessing or using the Services or clicking “accept” or “agree” to this agreement, (1) you acknowledge that you have read, understand, and agree to be bound by this agreement, and (2) you represent and warrant that you are of legal age and not prohibited by law from accessing or using the Services. In addition to this agreement, when using particular plans, offers, products, services or features, you will also be subject to any additional posted guidelines, or rules applicable to such plan, offer, product, service or feature, which may be posted and modified from time to time. All such additional terms are hereby incorporated by reference into this agreement, provided that in the event of any conflict between such additional terms and the agreement, the agreement shall control.

 

2.         Description of Service

This agreement applies to your use of (1) the fitli website at http://www.fitli.com and all affiliated websites owned and operated solely by fitli (collectively, the “fitli site”), (2) the fitness reservation services made available by fitli through the fitli site or any fitli-branded application for your mobile or other device (collectively, the “fitli application”), and any other online properties of fitli, as described ‘Description of Service', (3) the payment services made available by fitli through the fitli application as described “Payment Services”), (4) any fitli application, and (5) any other services or features made available by fitli through the fitli site or any fitli application. Together, the items in (1) through (5) are the “Services” 

In addition to the aforementioned, the “Services” includes all software, data, text, images, sounds, videos, and other content made available through the fitli site (collectively, “Content”). Any new features added to or augmenting the Services are also subject to this agreement.


fitli reserves the right, in its sole discretion, to (1) modify the Services from time to time and without notice, including, without limitation, by removing, adding, or modifying portions of the fitli site, fitli application, Businesses or Professionals listings, and any other Content.  fitli shall have no liability to you for any of the foregoing actions. If you object to any such changes, your sole recourse shall be to cease using the Services. Continued use of the Services following any such changes shall indicate your acknowledgment of such changes and satisfaction with all the Services.

 

3.         Translation

We may translate these terms into other languages for your convenience. Nevertheless, the English version governs your relationship with fitli, and any inconsistencies among the different versions will be resolved in favor of the English version.

 

4.         DISCLAIMERS; NO WARRANTIES

 

THE SERVICE, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SITE.

NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF FITLI SHALL CREATE A REPRESENTATION OR WARRANTY.

YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

IN NO EVENT SHALL FITLI BE LIABLE FOR ANY ACT, ERROR OR OMISSION BY ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER’S ATTENDANCE, USE OF OR PARTICIPATION IN A CLASS, SERVICE, PRODUCT OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH THE SERVICES. FITLI IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

5.         LIMITED LIABILITY

PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE FITLI ENTITIES TO YOU. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED. IF YOU ARE UNSURE ABOUT THIS OR ANY OTHER SECTION OF THESE TERMS, PLEASE CONSULT WITH A LEGAL PROFESSIONAL PRIOR TO ACCESSING OR USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO THESE TERMS, INCLUDING THIS SECTION. YOU ARE GIVING UP SUBSTANTIAL LEGAL RIGHTS BY AGREEING TO THESE TERMS.

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY IN THESE TERMS, OUR (INCLUDING ANY OF OUR AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) IN ANY WAY RELATED TO THE SERVICES OR THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM OUR SERVICE, SHALL BE LIMITED TO THE LESSER OF (I) PAYMENTS MADE BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) $100.

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

ACCORDINGLY, THE FITLI ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE SITE'S INOPERABILITY, UNAVAILABILITY OR SECURITY VULNERABILITIES OR FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, REVIEWS (INCLUDING THEIR CONTENT, ORDER, AND DISPLAY), OR METRICS FOUND ON, USED ON, OR MADE AVAILABLE THROUGH THE SERVICES.

THE FITLI ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES OR ADVERTISERS LISTED ON THE SITE OR THE SITE'S USERS. ACCORDINGLY, THE FITLI ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS OR OMISSIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER OR BUSINESS MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES OR ADVERTISERS LISTED OR FEATURED ON THE SITE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.

 

6.         Indemnification

You agree to defend, indemnify, and hold fitli, its affiliated companies, and its suppliers and partners, harmless from and against any claims, losses, damages, liabilities, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from your breach of these terms, or your and your end users’ access to, use, misuse or illegal use of the Services. We will provide you notice of any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist our defense of such matter.

 

7.         Waiver and Release

You understand that fitli is not a gym, fitness studio, or other service provider and the classes you take or services you use are operated and delivered by the applicable venue and not by fitli. Sessions, classes, activities, and other non-fitli products and services offered via the site are offered and provided by third parties, not fitli. Your attendance at and participation in these classes, activities, and your use of these non-fitli products and services is solely at your own risk.  fitli is not responsible for the quality of any class or service provided by third parties.  You understand that there are certain inherent risks and dangers in exercising and that the classes you may attend offer a range of activity and intensity level. By creating a fitli account, you acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or 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 primary care physician prior to participating and to determine if and how participating in any class or service is appropriate for you.  You also understand and agree that the site may offer health and fitness information that is designed for educational and entertainment purposes only and the use of any of the information provided on the site is solely at your own risk.

Therefore, to the fullest extent permitted by law, you release, indemnify, and hold harmless fitli, its parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns, from any and all responsibility, claims, actions, suits, procedures, costs, expenses, damages and liabilities arising out of or in any way related to your engagement with or use of service providers,  including with respect to bodily injury, physical harm, illness, death or property damage.

 

8.         Access and use of the Services

Eligibility

To access or use the Services, you must be 18 years or older and have the requisite power and authority to enter into these terms.  The availability of all or part of the Services may be limited based on demographic, geographic, other criteria as we may establish from time to time. You may not access or use the Services if you are a competitor of ours or if we have previously banned you or closed your account.  Your use of the Services is subject to the restrictions in this Agreement and is at your own risk, including the risk that you might be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. You understand and agree we may disallow you from subscribing to fitli or may terminate your subscription at any time based on these criteria.

 

Service Availability

The Services may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.

 

User Accounts

You must create an account and provide certain information about yourself in order to use some of the features that are offered through the Services.  You are responsible for maintaining the confidentiality of your account password.  You are also responsible for all activities that occur in connection with your account.  You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason.  In creating it, we ask that you provide complete and accurate information about yourself to bolster your credibility as a contributor to the Services.  You may not impersonate someone else, create or use an account for anyone other than yourself, provide an email address other than your own, or create multiple accounts. You must create an account with fitli through the fitli site or fitli application in order to use the reservation services or to purchase sessions or packages from business providers.  You agree that the information you provide to fitli at registration and at all other times will be true, accurate, current, and complete.  You also agree that you will ensure that this information is kept accurate and up-to-date at all times. When you register, you will be asked to create a password.  You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account.  You agree to immediately notify fitli of any unauthorized use of your account or any other breach of security related to your use of the Services.

 

Technical Requirements

Use of the Services requires internet access through your computer or mobile device.  You are responsible for all mobile carrier charges resulting from your use of the Services, including from any notifications provided by the Services. fitli does not guarantee that the Services will be compatible with all devices or will be supported by all mobile carriers.  You may be required to have JavaScript (or similar technologies) enabled to use the fitli site, and some features and portions of the fitli site (including, but not limited to, making, modifying, or canceling reservations) may not be accessible with JavaScript disabled.

 

Communications from fitli

The fitli application may use GPS locator capabilities to identify your current location. By providing a mobile phone number, you hereby expressly consent to receive SMS text messages from fitli regarding the Services and as otherwise described in our privacy policy. The communication standards for the Services include, but are not limited to: SMS, GPS, and web-based browser technology. In order to use the SMS-based Services, you must maintain an active account with a carrier of electronic communications through mobile devices and you may not use a prepaid cellular phone to access the Services.

By creating an account, you agree to receive certain communications in connection with the Services. For example, you might receive booking confirmations or purchase receipts.  You will also receive updates about promotions or changes in your neighborhood.  You can opt-out of non-essential communications.

You are responsible for all fees/charges associated with your mobile phone number including, but not limited to data usage and SMS Texts.

 

9.         User Submissions

General

The Site provides certain features which enable you and other users to submit, post, and share content with other users, which may include without limitation text, graphic, sound, and pictorial works, or any other content submitted by you and other users through the Services (“User Submissions”).  User Submissions are displayed for informational purposes only and are not controlled by fitli. fitli cannot guarantee any anonymity or confidentiality with respect to any User Submissions, and strongly recommends that you think carefully about what you upload to the Services.  You understand that all User Submissions are the sole responsibility of the person from whom such User Submission originated. This means that you, and not fitli, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Services.

 

Right to Remove or Edit User Submissions

fitli makes no representations that it will publish or make available on the Services any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Services, or to edit or remove any user Submission at any time with or without notice. Without limiting the generality of the preceding sentence, fitli complies with the Digital Millennium Copyright Act, and will remove User Submissions upon receipt of a compliant takedown notice (see the “Digital Millennium Copyright Act” section below).

 

License Grant by you to fitli

You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to fitli, you hereby grant fitli and its affiliates, sub-licensees, partners, designees, and assignees of the Services (collectively, the “fitli Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sub-licensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Services and fitli’s (and its successors’) business, including, without limitation, for marketing, promoting, and redistributing part or all of the Site (and derivative works thereof), in any media formats and through any media channels now known or hereafter discovered or developed.

 

User Submissions Representations and Warranties

You are solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize fitli to use all patent, trademark, copyright, or other proprietary rights in and to your User Submissions to enable inclusion and use of your User Submissions in the manner contemplated by fitli and these terms, and to grant the rights and license set forth above, and (ii) your User Submissions, fitli’s or any fitli Licensee’s use of such User Submissions pursuant to these terms, and fitli’s or any of fitli Licensee’s exercise of the license rights set forth above, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) cause injury to any other person; (c) violate these terms or any applicable law or regulation; or (d) require obtaining a license from or paying fees or royalties to any third party for the exercise of any rights granted in these terms, including, by way of example and not limitation, the payment of any royalties to any copyright owners, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others. fitli may, but is not obligated to, monitor and edit or remove any activity or content, including but not limited to content that fitli determines in its sole discretion to violate the standards of the Services. fitli takes no responsibility and assumes no liability for any User Submissions.

 

Inaccurate or Offensive User Submissions

You understand that when using the Site, you may be exposed to User Submissions from a variety of sources and that fitli does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions.  You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against fitli with respect thereto.

 

Feedback

If you provide fitli with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Services (“Feedback”), fitli shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Services.  You hereby grant fitli a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.

 

10.   Data Privacy and Security

 

Privacy

Your privacy is important to fitli. Please see the Privacy Policy for more information.

 

Passwords and Account Security

At the time of your registration you will receive a password.  You are responsible for maintaining the confidentiality of your password and account and any activities that occur under your account, and for updating your password regularly. fitli shall not be liable to any person for any loss or damage which may arise as a result of any failure by you to protect your password or account.

 

11.   Intellectual Property

 

Intellectual Property Rights and Grant of Rights to user

The features, information, and materials provided and depicted through the Services are protected by copyright, trademark, patent, and other intellectual property laws. All text, graphical content, video, data, and other content made available through the Services (collectively, the “fitli Content”) are provided to user by fitli or its partners or licensors solely to support user’s permitted use of the Services. The fitli Content may be modified from time to time by fitli in its sole discretion. Except as expressly set forth herein, no license is granted to user for any other purpose, and any other use of the Services or the fitli Content by user shall constitute a material breach of this agreement. fitli and its partners or licensors retain all rights in the Services and fitli Content and any associated patents, trademarks, copyrights, mask work rights, trade secrets, or other intellectual property rights. No license, right, or interest in any trademarks of fitli or any third party is granted under this agreement.

 

Application License

Subject to the terms and conditions of this agreement, fitli grants user a non-exclusive, non-transferable, revocable license to use the fitli application, in object code form only, on the web or user’s compatible mobile devices, solely to support user’s permitted use of the Services.

 

Infringing or Fraudulent Activity

fitli does not permit copyright infringing activities and reserves the right to terminate access to the Services and remove all content submitted by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies fitli may have at law or in equity.

 

Digital Millennium Copyright Act

If you believe that your copyright or trademark is being infringed on the Services, please send us a written notice with the following information:

1.    Identification of the copyrighted or trademarked work that you claim has been infringed;

2.    Identification of the allegedly infringing content, and information reasonably sufficient to permit fitli to locate it on the Site (e.g., the URL for the web page on which the content appears);

3.    A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright/trademark owner, its agent, or the law;

4.    A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright/trademark owner or authorized to act on the owner's behalf; and

5.    Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).

At the same time, if you believe that your content should not have been removed for alleged copyright or trademark infringement, you may send us a written counter-notice with the following information:

1.    Identification of the copyrighted or trademarked work that was removed, and the location on the Services where it would have been found prior to its removal;

2.    A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification. For trademark disputes only: information reasonably sufficient to explain why you believe you are not infringing the trademarked work;

3.    A statement that you consent either to the jurisdiction of (a) the Federal District Court for the judicial district in which your address is located if you live in the United States, or (b) any judicial district in which fitli is located if you live outside the United States. Please also include a statement that you will accept service of process from the person who sent the original infringement notice to fitli, or an agent of such person;

4.    Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).

We will respond to all such notices and comply with applicable law. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to terminate a user's account if the user is determined to be a repeat infringer.

You can send us your copyright or trademark notices in the following ways.

By mail or courier:

 

fitli, Inc. Attn: Copyright Agent 4833 Front St. Unit B #167 Castle Rock, Co. 80104 copyright@fitli.com

 

We cannot take action unless you provide all the required information.

 

12.   Third Party Services

External Sites

The Service may contain links to, or otherwise may allow you to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with our Services. If you decide to access and use such Other Services, be advised that your use is governed solely by the terms and conditions of such Other Services, and we do not endorse, are not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle your data. We are not liable for any damage or loss caused or alleged to be caused by or in connection with your access or use of any such Other Services, or your reliance on the privacy practices or other policies of such Other Services.

 

Integration

The Service may contain features that enable various Other Services (such as social media services like Facebook and Twitter) to be directly integrated into your experience. To take advantage of these features, you will be required to register for or log into such Other Services on their respective websites. By enabling third party services within the Services, you are expressly allowing us to pass your log-in information to these Other Services for this purpose.


 

13.   Cancellation and Termination

We reserve the right to (i) modify or discontinue, temporarily or permanently, any of the Apps or the Services (or any part thereof) and (ii) refuse any/all current and future use of the Services, suspend or terminate your account if we believe that you have violated these terms. We will use commercially reasonable efforts to contact you directly via email to warn you prior to suspension or termination of your account. Any suspected fraudulent, abusive, or illegal activity may be grounds for immediate termination of your use of Services, and may be referred to law enforcement authorities.  You agree that we are not be liable to you, or any third party, for any modification, suspension or discontinuation of the Services.
 You may terminate the terms at any time by closing your account, discontinuing your use of the Services, and providing fitli with a notice of termination.  Please review our privacy policy or information about what we do with your account when terminated.

 

14.   Assignment; Entire agreement; Revisions

Either party may assign or transfer these terms, in whole or in part, without restriction, provided the assignee agree to be fully bound by these terms. These terms supersede prior versions of these terms, or any other discussions, agreements or understandings by or among the parties (other than written agreements expressly accepted and executed by both parties).

fitli may modify this agreement from time to time. Any and all changes to this agreement will be posted on the fitli.com site. In addition, the agreement will indicate the date it was last revised.  If you do not agree to the terms of this agreement or any modified version of this agreement, your sole recourse is to terminate your use of the Services, in which case you will no longer have access to your Account.  Except as otherwise expressly stated by fitli, any use of the Services is subject to the version of this agreement in effect at the time of use.

 

15.   Severability

If any provision in these terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these terms shall remain in effect.

 

16.   Export Compliance

Export Compliance

Certain Content and software components of the Services may be subject to U.S. export control and economic sanctions laws. If you are subject to U.S. laws, you agree to comply with all such laws and regulations as they relate to such software and Content, and access and use of the Services.  You shall not access or use the Service if you are located in any jurisdiction prohibited by U.S. Laws, and you shall also not provide access to the Services to any government, entity or individual located in any such jurisdictions.

 

17.   Use Restrictions

We are under no obligation to enforce the terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the terms, we reserve the right to investigate and take appropriate action at our sole discretion.

You agree not to, and will not assist, encourage, or enable others to use the Services to:

·      Violate our Content Guidelines, for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;

·      Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;

·      Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;

·      Promote a business or other commercial venture or event, or otherwise use the Services for commercial purposes, except in connection with a Business Account and as expressly permitted by fitli;

·      Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Services search results or any third party website;

·      Solicit personal information from minors, or submit or transmit pornography; or

·      Violate any applicable law

 

you also agree not to, and will not assist, encourage, or enable others to:

·      Violate the terms;

·      Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Services or Content (other than your Content), except as expressly authorized by fitli;

·      Use any robot, spider, site search/retrieval application, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology, process or means to access, retrieve, or index any portion of the Services or any Services Content; use any to access, acquire, copy or monitor fitli.com or any portion of fitli.com, without fitli’s express written consent, which may be withheld in fitli’s sole discretion;

·      Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of fitli.com or the Services

·      Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services;

·      Record, process, or mine information about other users;

·      Access, retrieve or index any portion of the Services for purposes of constructing or populating a searchable database of business reviews;

·      Reformat or frame any portion of the Services;

·      Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on fitli's technology infrastructure or otherwise make excessive traffic demands of the Services;

·      Attempt to gain unauthorized access to the Services, user accounts, computer systems or networks connected to the Services through hacking, password mining or any other means;

·      Use the Services or any Services Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses");

·      use any device, software or routine that interferes with the proper working of the Services, or otherwise attempt to interfere with the proper working of the Services;

·      Use the Services to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Services or Services Content; or

·      Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Services, features that prevent or restrict the use or copying of Services Content, or features that enforce limitations on the use of the Services.

·      Harass, threaten, or defraud users, members or staff of fitli or Service Providers;

·      Make unsolicited offers, advertisements, proposals, or send junk mail or “spam” to users;

·      Impersonate another person or access another user’s account without that person’s permission;

·      Share fitli-issued passwords with any third party or encourage any other user to do so;

·      Cancel any fitli session directly with a Service Provider, rather than through the fitli Services,

·      Misrepresent the source, identity, or content of information transmitted via the Services, including deleting the copyright or other proprietary rights;

·      Upload copyrighted material that is not your own or that you do not have the legal right to distribute, display, and otherwise make available to others; or

·      Upload or send to Services users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content.

 

The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing 30 days' prior written notice to us here, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.

 

18.   Legal Compliance

You agree to comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Services. fitli reserves the right to investigate complaints or reported violations of our the agreement and to take any action we deem appropriate, including but not limited to canceling your Member account, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information, as allowed under our Privacy Policy.

 

19.   Survival

The parties’ rights and obligations under Sections 4. DISCLAIMERS; NO WARRANTIES, 5. LIMITED LIABILITY, and 6. Indemnification, as well as any obligations to pay Fees and other amounts owing that accrued prior to termination, shall survive any expiration or termination of this agreement.

 

20.   Governing Law; Venue; Attorney’s Fees

Our Legal terms shall be treated as though it were executed and performed in Delaware, United States and shall be governed by and construed in accordance with the laws of Delaware, United States without regard to conflict of law principles. In addition, you agree to submit to the personal jurisdiction and venue of such courts. Any cause of action by you with respect to our Services, must be instituted within one (1) year after the cause of action arose or be forever waived and barred. To the extent that any Content in our Services conflicts or is inconsistent with our Legal terms, our Legal terms shall take precedence.  Our failure to enforce any provision of our Legal terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. The rights of fitli under our Legal terms shall survive the termination of our Legal terms.  In the event of any legal action between you and us, the substantially prevailing party shall receive from the losing party its reasonable costs and attorney’s fees incurred in the action and in any appeal.

 

21.   Concierge Services

fitli provides Concierge Services to user for the purpose of assisting user in securing bookings at Out-of-Network Service Providers.  Out-of-Network Service Providers are businesses that have not signed up to be part of the fitli network and have no contractual relationship or affiliation with fitli in any way.  fitli performs this service for free and provides no guarantees, liabilities, or warranty in relation to the service.  fitli will make a best effort to secure a requested booking with an Out-of-Network Service Provider and confirm that booking with User.  All purchases, payments, cancellations, refunds or any other activities associated with a requested booking must be handled directly between User and that Out-of-Network Service Provider.

 

22.   Purchasing Sessions, Packages, or Memberships

Purchasing

Users can purchase sessions, packages, or memberships from In-Network Service Providers.  In-Network Service Providers are businesses that have signed up to be a part of the fitli network and have a contractual relationship and affiliation with fitli.  In order to book a session with an In-Network Service Provider, User must first purchase a session, package, or membership from that Service Provider.  That purchase transaction is, exclusively, between the User and In-Network Service Provider.  fitli will help facilitate the purchase and monitor status of sessions purchased.  This is informational only and the Service Providers are considered to hold the official records.

All purchases made on this fitli’s Site or fitli’s Application are governed by this Agreement. The Agreement governing any purchase will be that in effect at the date of your purchase. We reserve the right at our sole discretion to amend this Agreement at any time. If you purchase sessions after we have published any changes you will be bound by those changes. Accordingly, you should check prior to each purchase to ensure that you understand the precise terms and conditions applicable to your purchase. To assist you in determining whether the Agreement has changed since your most recent purchase we will display the date when this Agreement was most recently updated.

 

Refunds

All refund requests should be routed directly to the Service Provider.  Once a purchase is completed via the fitli services, it is considered non-refundable by fitli.  Service providers have their own policies which Users should review before making purchases.  fitli accepts no liability for Services not performed or Services performed not to satisfaction by Service Providers.

 

23.   Booking Sessions

Booking Services

fitli provides the Booking Services to user for the purpose of assisting user in securing bookings at participating third-party In-Network Service Providers.  In response to a user’s online or mobile request for a booking through the fitli Site or fitli Application, fitli directly contacts the Service Providers computerized database of bookings. The availability of bookings is determined at the time of user’s query. Once a booking is made by user through the fitli Site or fitli Application, fitli will provide confirmation of the booking to user by email or text message (SMS). By using the Booking Services, user agrees to receive booking confirmations by email or text message after completing a booking through Booking Services.  Once the session is booked, a session will be debited from Users available pre-purchased sessions.

 

Session Cancellations

Service Providers set and maintain their own Cancellation policies.  If User requests cancellation of a booked session within pre-defined cancellation window set by Service Provider, the session will be automatically canceled from the fitli Site or fitli Application and the canceled session will be returned to the Users available pre-purchased sessions.  However, if User requests cancellation of a booked session outside of pre-defined cancellation window set by Service Provider, the User will be unable to process the cancellation.  Service Provide does have the ability to manually process a cancellation request within the pre-defined cancellation window at their discretion.  If Service Provider manually processes the cancellation request, the cancelled session will be returned to the Users available pre-purchased sessions.

 

No-Shows

If User fails to appear at a booked session that has not been canceled prior to the session start time, the session will no longer be cancelable within the fitli Services.  Any additional recourse must be requested directly from the Service Provider.

 

Service Provider Waivers and Terms

Users utilizing sessions purchased on any of the fitli Services or on the website at the merchant's premise are deemed to agree to the liability waivers of individual Service Providers.  Your participation in any class or session may be subject to addition policies, rules or conditions of the applicable Service Provider and you understand and agree that you may not be permitted to reserve or attend classes at a particular Service Provider if you do not comply with these terms or the policies of such Service Provider. If you have questions about a Service Provider’s waiver or other terms, please see the applicable Service Provider’s website or contact the Service Provider directly.

Service Providers are solely responsible for their interactions with you and any and all claims, injuries, illnesses, damages, liabilities, and costs (“Claims”) suffered by you as a result of your interaction with or visit to any Service Provider or from any product or service of any Service Provider.  You hereby release the fitli from any and all such Claims. IN CONNECTION WITH THE FOREGOING, IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “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.” you hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the fitli Parties pertaining to the subject matter of this Section 36.

 

24.   Payment Processing

Payment Processing

fitli uses Braintree, a division of PayPal, Inc. (Braintree) for payment processing services. By using the Braintree payment processing services you agree to the Braintree Payment Services agreement available at https://www.braintreepayments.com/legal/gateway-agreement, and the applicable bank agreement available at https://www.braintreepayments.com/legal/cea-wells ."

 

25.   Business Customers

 

Subscribing Organizations

If you are using or opening an account on behalf of a company, entity, or organization (a “Business”), then you represent and warrant that you are an authorized representative of that Business with the authority to bind such organization to these terms; and agree to be bound by these terms on behalf of such Business.

 

Pricing

By creating a fitli business account, you agree to fitli pricing which will be clearly and obviously indicated on the fitli site.  fitli will charge the following fees to business customers:

·      Payment Processing – All purchases of sessions, packages, or memberships from your business which are processed through the fitli platform are subject to a payment processing fee.

·      Each Billable booking funded by a package or single session purchase is subject to a booking fee

·      Each membership sold is subject to a membership fee

 

Billable Bookings

Billable bookings are bookings made with the Business by fitli Acquired Consumers using the fitli Services.

 

Fitli Acquired Consumers

Fitli Acquired Consumers are defined as new consumer customers who have engaged with the business customer for the first time via the fitli platform.  In order to determine whether a consumer customer is new, each business customer will provide a one-time list of pre-existing customers to generate a “White-list”.

 

White-list

In order for fitli to identify your pre-existing customers and exclude them from the billable bookings, you agree to 1.) Provide fitli a list of customers including name and email address; and 2.) either you or fitli (on your behalf) will enter your pre-existing customers contact information into the fitli system.  You, further, authorize fitli to communicate with those customers for the express purpose of inviting them to open a fitli account.  Once those customers open a fitli account, they will have a separate independent relationship with fitli and that relationship will be governed by this Agreement.  In order for customers to be able to transact with you on fitli (e.g. purchasing, booking, and communication), they must open an account with fitli.  That includes pre-existing customers.  If any customer provided by you does not open an account with fitli, that customer’s information will be used only for the benefit of your business interactions with that customer.  fitli will not share that customer’s information with any 3rd parties except for the purposes of providing services to you (e.g. processing payments, etc.).  That customer’s information will not be visible or accessible to any other business customer of fitli unless provided directly to them by the customer in question.

 

Price Changes

We reserve the right to adjust pricing at any time. Unless we expressly communicate otherwise, any price changes will take effect on the next billing cycle upon notice communicated through a posting on the fitli Site of fitli Application or such other means as we may deem appropriate from time to time (such as email).

 

Payment Processing

All fees for payment processing will be deducted from the settlement of funds to the business bank account.

 

Billing

By starting your fitli membership, you authorize us to charge you for billable bookings at the then current rate, which may change from time to time.  You acknowledge that the amount billed each month may vary for reasons that may include differing amounts due to volume of sessions booked or promotional offers, and you authorize us to charge your Payment Method for such varying amounts, which may be billed monthly in one or more charges.

 

Billing Cycle

Billing will, generally, occur at the end of each month. We reserve the right to change the timing of our billing or to bill more than once per month.

 

Refunds

All fees are charged for services performed (transactions processed or bookings completed), therefore, fees are non-refundable.

 

Fraud and Chargebacks

It is incumbent upon you to 1.) ensure that the individuals making purchases from you or using your services are the correct owners of the fitli account; and 2.) deliver products and services to your customers in a timely manner with the highest quality of service.  Specifically, when a customer makes a purchase from your business in person and charges the purchase to their fitli account, you agree to check that person’s identification.  If fitli is notified of any fraud in regards to transactions at your business or a customer who completed a purchase from your business files a chargeback on their credit card, fitli will pass those charges on to your account in the next billing cycle (inclusive of any fees levied by the payment processor).  We encourage both parties to resolve any disagreements amicably.

 

Payment Methods

You may edit your Payment Method information by logging onto the fitli Site and editing it under "My Account" and then "Settings". If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not edit your Payment Method information or cancel your account, you nonetheless will remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated.  If we are unable to charge your account, we reserve the right, but are not obligated, to terminate your access to the Services and pursue collection activities

 

Cancellation of Business Account

You may cancel your Business Account at any time with 7 days’ notice by sending an email to cancellation@fitli.com. Once the cancellation is processed, you will no longer have access to the service and your customers will no longer be able to utilize the fitli Services to interact with your business.  You will always have the option to reopen your fitli Business Account.  If you do reopen your fitli Business Account, all fitli Acquired Consumers at the time of Cancellation will maintain that status and all future transactions will continue to be Billable.

 

Transfer of rights at sale

If title to the business is transferred, administrative rights to the database will be transferred upon either: 1) legal proof of sale documentation from the current or former owner or 2) a notarized written release from the former owner requesting the transfer of administrative rights to the new owner.

 

Interoperability

You are responsible for maintaining your services and devices (i.e., internet, computers, etc.).  You shall maintain the functional operation of all of your mobile devices, workstations, networks, and Internet connections necessary to ensure proper operation of the Services, including installation and operation of any associated operating system and web browser according to applicable manufacturer specifications and recommendations.  fitli will provide reasonable notice of any changes in system requirements that will be required to continue using the service.

 

Non‐Commercial use

The Services may not be used in connection with any commercial purposes, except as specifically approved in writing by fitli or as provided within this Agreement. The Services are intended for managing your business information and communicating with your customers. Unauthorized framing of or linking to any part of our Services is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed from Member profiles and user Content without notice and may result in termination of Business Account privileges.

 

Relationship of the Parties

The parties are independent contractors. These terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

 

Taxes

Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”).  You are responsible for paying Taxes except those assessable against us based on our income. We will invoice you for such Taxes if we believe we have a legal obligation to do so, and if that occurs you agree to be liable for such Taxes owed.

 

26.   ARBITRATION / CLASS ACTION WAIVER

ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. 

Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.  Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that you file in small claims court.  Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.  You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

You and fitli must abide by the following rules: (1) ANY CLAIMS BROUGHT BY YOU OR FITLI MUST BE BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (2) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (3) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, fitli will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (4) fitli also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (5) the arbitrator shall honor claims of privilege and privacy recognized at law; (6) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (7) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (8) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and, in such instance, the fees and costs awarded shall be determined by the applicable law.

Notwithstanding the foregoing, either you or fitli may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. To the extent possible, such claims shall be brought in the state or federal courts located in Douglas County, Colorado. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Douglas County, Colorado in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Douglas County, Colorado for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

With the exception of subparts (1) and (2) in this Section (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting part was not contained herein. If, however, either subpart (1) or (2) is found to be invalid, unenforceable, or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor fitli shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in Douglas County, Colorado.