as of June 16, 2014
Welcome to the FitPass website (the "Site") operated by Sportsy, Inc. ("FitPass").
BY ACCESSING, BROWSING, AND/OR OTHERWISE USING THE SITE, YOU Accept and AGREE TO BE BOUND BY THE FOLLOWING TERMS. In addition, when using particular FitPass services, you and FitPass shall be subject to any posted guidelines or rules applicable to such services, which may be posted and modified from time to time.
1. ELIGIBILITY; REGISTRATION INFORMATION AND PASSWORD; SITE ACCESS.
THE SITE IS NOT AVAILABLE TO PERSONS OUTSIDE THE UNITED STATES OR TO ANY USERS SUSPENDED OR REMOVED FROM THE SITE BY FITPASS. BY USING THE SITE, YOU REPRESENT THAT YOU ARE A U.S. CITIZEN, WHO HAS NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE SITE.
If you are using or opening an account on the Site on behalf of a company, entity, or organization (a "Subscribing Organization"), then you represent and warrant that you are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.
You agree that the information you provide to FitPass on 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.
2. FEES; CLASS REGISTRATION.
FitPass is a membership service. Your paid membership entitles you to reserve classes at our class providers (the "Provider") per the terms of your membership plan. Memberships are recurring and will automatically bill upon the anniversary date of your membership at the then current rate for the membership plan you are enrolled. FitPass will bill charges through the payment method specified in your account (e.g. credit card).
You agree that you are the credit card holder for your account, or have express permission of the cardholder to use their card as a payment method.
You can easily register for a class on our site, through our "Reserve" feature. After clicking "Reserve" next to the desired class name and time, follow the instructions to complete your class registration. FitPass cannot guarantee availability of classes or any Provider. Any participating Provider and available classes are subject to change at any time.
3. REFUND POLICY; CANCELLATION.
Your confirmation of an appointment or class reservation will be emailed to you at the time of booking. All appointments or class reservations are subject to the cancellation policy.
You will be responsible for reviewing these policies at the time the appointment or class reservation is made. You may cancel a reservation by emailing us at email@example.com in accordance with the cancellation policy.
If you do not arrive on time in accordance with the policies and have not cancelled in accordance with the cancellation policies, then the Provider will not be obligated to permit you to the class, activity or other service you have purchased, you will forfeit your class credit, with no entitlement to any refund or credit, and charged any cancellation or no show fees.
Except as otherwise expressly provided above or unless FitPass states in writing otherwise, all fees and charges are nonrefundable.
5. PROHIBITED CONDUCT.
By using the Site, you promise not to:
- Harass, threaten, or defraud Site users;
- Make unsolicited offers, advertisements, proposals, or send junk mail to users;
- Impersonate another person or access another user's account without that person's permission;
- Share FitPass-issued passwords with any third party or encourage any other user to do so;
- Misrepresent the source, identity, or content of information transmitted via the Site, including deleting the copyright or other proprietary rights;
- Upload material (e.g. virus) that is damaging to computer systems or data of FitPass or users of the Site;
- 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;
- Upload or send to Site users pornographic, threatening, embarrassing, hateful, racially or ethnically insulting, libelous, or otherwise inappropriate content;
6. PROHIBITED USES.
This site is intended for U.S. residents only. Those who choose to access the Site do so at their own initiative and are responsible for compliance with all local rules including, without limitation, rules about the internet, data, email, or privacy.
As a condition of your use of the Site, you will not use the Site for any purpose that is unlawful or prohibited by these Terms. You may not use the Site in any manner that, in our sole discretion, could damage, disable, overburden, or impair it or interfere with any other party's use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site, or any part of the Site, other accounts, computer systems or networks connected to the Site, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. You may not remove, circumvent, disable, damage or otherwise interfere with security-related features of the Site, any features that prevent or restrict use or copying of any content accessible through the Site, or any features that enforce limitations on the use of the Site or the content therein. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Site. You agree neither to modify the Site in any manner or form, nor to use modified versions of the Site, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
The Site may contain robot exclusion headers. You agree that you will not use any robot, spider, scraper, or other automated means to access the Site for any purpose without our express written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Site.
If you are under the age of majority (18 in most states), you may register for a class only with involvement of a parent or guardian. FitPass reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in their sole discretion.
7. 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 and pictorial works, or any other content submitted by you and other users through the Site ("User Submissions"). User Submissions are displayed for informational purposes only and are not controlled by FitPass. FitPass 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 Site. 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 FitPass, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit, or otherwise make available through the Site.
Right to Remove or Edit User Submissions. FitPass makes no representations that it will publish or make available on the Site any User Submissions, and reserves the right, in its sole discretion, to refuse to allow any User Submissions on the Site, or to edit or remove any User Submission at any time with or without notice. Without limiting the generality of the preceding sentence, FitPass 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 FitPass. You retain all your ownership rights in original aspects of your User Submissions. By submitting User Submissions to FitPass, you hereby grant FitPass and its affiliates, sublicensees, partners, designees, and assignees of the Site (collectively, the "FitPass Licensees") a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable, and transferable license to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, and otherwise exploit your User Submissions and derivatives thereof in connection with the Site and FitPass'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 FitPass 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 FitPass and these Terms, and to grant the rights and license set forth above, and (ii) your User Submissions, FitPass's or any FitPass Licensee's use of such User Submissions pursuant to these Terms, and FitPass's or any of FitPass 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. FitPass may, but is not obligated to, monitor and edit or remove any activity or content, including but not limited to content that FitPass determines in its sole discretion to be violative of the standards of this Site. FitPass 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 FitPass 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 FITPASS WITH RESPECT THERETO.
Feedback. If you provide FitPass with any comments, bug reports, feedback, or modifications proposed or suggested by you to the Site ("Feedback"), FitPass shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Site. You hereby grant FitPass a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
8. ADDITIONAL TERMS.
When using the Site, you will be subject to any additional posted guidelines or rules applicable to specific products, services, or features which may be posted from time to time (the "Guidelines"). All such Guidelines are hereby incorporated by reference into the Terms.
By FitPass. You agree that FitPass, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with FitPass or use of the Site and remove and discard all or any part of your account or any content uploaded by you, at any time. FitPass may also in its sole discretion and at any time discontinue providing access to the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site or any account you may have or portion thereof may be effected without prior notice, and you agree that FitPass will not be liable to you or any third party for any such termination. FitPass does not permit copyright infringing activities on the Site and reserves the right to terminate access to the Site and remove all content submitted by any persons who are found to be repeat infringers. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Site may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies FitPass may have at law or in equity.
By you. You may terminate your account and your right to use the Site at any time and for any reason or no reason, by contacting FitPass user support at firstname.lastname@example.org or by deleting your account.
10. OWNERSHIP; PROPRIETARY RIGHTS.
The Site is owned and operated by FitPass. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Site provided by FitPass ("Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by you, all Materials contained on the Site are the copyrighted property of FitPass or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to FitPass or its affiliates and/or third-party licensors. Except as expressly authorized by FitPass, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
11. THIRD-PARTY SITES, PRODUCTS AND SERVICES; LINKS.
The Site may include links to other web sites or services ("Linked Sites") solely as a convenience to users. FitPass does not endorse any such Linked Sites or the information, material, products, or services contained on other linked sites or accessible through other Linked Sites. Furthermore, FitPass makes no express or implied warranties with regard to the information, material, products, or services that are contained on or accessible through linked sites. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SITES OR AVAILABLE THROUGH LINKED SITES, IS SOLELY AT YOUR OWN RISK.
Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Site are solely between you and such advertiser. YOU AGREE THAT FITPASS WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE SITE.
Except as explicitly stated otherwise, legal notices will be served, with respect to FitPass, on FitPass's national registered agent, and, with respect to you, to the email address you provide to FitPass during the registration process. Notice will be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice will be deemed given three days after the date of mailing.
13. DISCLAIMERS; NO WARRANTIES.
CLASSES, ACTIVITIES, AND ANY OTHER SERVICES OFFERED VIA THE SITE ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT FITPASS. YOU AGREE THAT ATTENDANCE AT OR USE OF ANY SUCH CLASSES, ACTIVITIES, OR OTHER SERVICES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL FITPASS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH A USER'S ATTENDANCE OR PARTICIPATION IN A CLASS, SERVICE OR APPOINTMENT MADE THROUGH THE SITE, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY PROVIDER IN CONNECTION WITH THE SERVICES. IN ADDITION, ALL USERS SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING USERS TO THE SITE BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO THE USER FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES, THE SITE OR ANY CONTENT ON THE SITE. FITPASS IS NEITHER AN AGENT OF NOR IS CONNECTED WITH ANY PROVIDER WITH WHICH A USER HAS MADE A RESERVATION, OTHER THAN AS THE PROVIDERS OF THE SERVICES PROVIDED ON THE SITE. WITHOUT LIMITING ANYTHING HEREIN, FITPASS DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO ANY CLASSES, ACTIVITIES, OR OTHER SERVICES OFFERED VIA THE SITE.
UNLESS OTHERWISE EXPRESSLY STATED BY FITPASS, THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FITPASS, ITS SUPPLIERS AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
UNLESS OTHERWISE EXPRESSLY STATED BY FITPASS, FITPASS, ITS SUPPLIERS AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (II) REGARDING THE USE OF THE SITE AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
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.
14. INDEMNIFICATION; HOLD HARMLESS.
You agree to indemnify and hold FitPass, its affiliated companies, and its suppliers and partners harmless from any claims, losses, damages, liabilities, including attorney's fees, arising out of your use or misuse of the Site, violation of these Terms, violation of the rights of any other person or entity, or any breach of the foregoing representations, warranties, and covenants.
A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of any party at any time to require performance of any provision of these Terms will in no manner affect such party's right at a later time to enforce the same. A waiver of any breach of any provision of these Terms will not be construed as a continuing waiver of other breaches of the same or other provisions of these Terms.
16. LIMITATION OF LIABILITY AND DAMAGES.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL FITPASS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THE USE OF THE SITE, INCLUDING THOSE THAT RESULT FROM THE USE OR THE INABILITY TO USE THE MATERIALS ON THE SITE, OR ANY OTHER INTERACTIONS WITH FITPASS, EVEN IF FITPASS OR A FITPASS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, FITPASS'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL FITPASS OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS OR SUPPLIERS HAVE ANY LIABILITY TO YOU FOR DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SITE (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE).
17. INFRINGEMENT POLICY.
Please see our Digital Millenium Copyright Act document for an explanation of our copyright and trademark policies.
18. DISPUTE RESOLUTION.
General. Generally, if a dispute arises between FitPass and you, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and FitPass agree that the parties will resolve any claim or controversy at law or equity that arises out of this Agreement or the Site (a "Claim") in accordance with one of the subsections below or as you and we otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Choice of Law; Forum. These Terms shall be governed in all respects by the laws of the State of Calfornia, without regard to conflict of law provisions. You agree that any claim or dispute you may have against FitPass must be resolved by a court located in Los Angeles County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or disputes.
Arbitration Option. For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding, non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
Entire Agreement. This is the entire agreement between you and FitPass relating to the subject matter herein and will not be modified except in writing, signed by both parties, or by a change to these Terms or Guidelines made by FitPass as set forth in the Preamble to these Terms.
Claims; Statute of Limitations. YOU AND FITPASS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Disclosures. The services hereunder are offered by Sportsy, Inc., located at: 5400 Playa Vista Drive #25, Playa Vista, CA 90094 and email: email@example.com. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.