Updated October 15, 2020
PLEASE READ THE FOLLOWING TERMS IN FULL
THESE TERMS AFFECT YOUR LEGAL RIGHTS
Welcome to FIND YOUR FYT, a service of In-Shape Health Clubs, LLC (the terms “FYT,” “we,” “our,” and/or “us” refer to and mean Find Your Fyt, In-Shape Health Clubs, LLC, and any of their subsidiaries and affiliated companies). FYT offers fitness training and content and similar services through our mobile application and through other platforms including, without limitation, Internet-connected or “Smart” TVs, computers, tablets and other devices (collectively, the “Service”). To use the FYT Service, you must register for an account (“Account”) and subscribe to the Service. The Service, along with our website www.findyourfyt.com and related websites, blogs or other digital properties we provide or make available to you (hereinafter, the “Sites”), are referred to collectively throught these Terms and Conditions as the “Program.”
These Terms and Conditions are a legally binding contract between you and FYT regarding your purchase and use the Program.
• WAIVER OF LIABILITY AND ASSUMPTION OF RISK. You should be aware that these Terms and Conditions (see Section 15) include a waiver of liability and require you to acknowledge that you have assumed all risks of injury which may result from your use of the Program.
• ARBITRATION OF DISPUTES AND CLASS ACTION WAIVER. Except for certain disputes described below in Section 16, disputes arising pursuant to these Terms and Conditions, including disputes arising from your purchase or use of the Program, will be resolved by binding. BY ACCEPTING THESE TERMS, YOU AND FYT ARE EACH WAIVING THE RIGHT TO HAVE A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION. (See Section 16.)
TERMS AND CONDITIONS
2. Use of the Service.
a. By Using the Program, You Acknowledge and Agree as Follows:
i. You should consult with your doctor or health care practitioner prior to taking part in any exercise or physical activity. You are solely responsible for consulting with your health care practitioner to determine if your participation in the Program is advisable. The exercises, activities, information and other content of the FYT Program do not constitute medical advice, treatment, prescriptions or diagnoses.
ii. Using the Program may involve strenuous physical exercise and activities that may be dangerous and involve significant physical and emotional stress and exertion. Such exercise and activities inherently pose a risk of injury, including serious injuries including death. The Program is intended for use only by individuals healthy enough to perform strenuous physical exercise. Your use of the Program and performance of any and all exercises and activities during use of the Program is at your own risk, and you hereby agree, to the fullest extent allowed by law, to expressly assume and accept any and all known and unknown risks of injury, physical or mental harm or death arising from your use of the Program.
b. Eligibility. You must be at least eighteen (18) years old to use the Program and make a purchase. By agreeing to these Terms and Conditions, you represent and warrant that: (a) you are at least eighteen (18) years old; (b) you are a resident of the United States; (c) you have full power and authority to enter into these Terms and Conditions; and (d) your registration and your use of the Program is in compliance with any and all applicable laws and regulations.
3. Accounts and Registration.
a. Account Required. To use or access features of the Program or Service, you must have an Account. To register for an Account, you will be required to provide us with information about yourself, including your name, email address, phone number and other contact information. You agree all information you provide us will be accurate and complete and that you will keep such information up-to-date at all times. You are solely responsible for maintaining the confidentiality of your Account and password, and you are responsible for all activities that occur under your Account. If you believe that your password has been compromised or your Account is otherwise no longer secure, then you must immediately notify us at firstname.lastname@example.org and promptly change your password. You may not provide your password or Account credentials to any other person or use any other person’s username and password.
b. Consent to Receive Electronic Communications From Us. By creating an Account, you consent to receive electronic communications from FYT by email or by posting notices to the Sites, including notices about your Account and your relationship with us. Any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. We recommend that you save copies of electronic communications from us. We may also send you promotional communications via email, including, but not limited to, offers, news and information about us, or our affiliates and/or third party partners, surveys and the like. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
c. Push Notifications and Automatic Messages. When you install our application on your mobile device, you are agreeing to receive push notifications of messages to your mobile device when the application is not on. You may discontinue push notifications by changing the settings on your devise. By providing your mobile phone number to us through the Sites or in connection with your order, receipt or use of the Service, you consent to receive calls or text messages at any such phone number sent by or on behalf of FYT, including autodialed calls and/or text messages, for transactional or operational purposes. You may opt out of calls or messages by following the applicable unsubscribe instructions provided to you. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you.
4. Purchase Terms and Conditions.
a. Prices. All prices on our sites are shown in U.S. Dollars and applicable taxes and other charges, if any, are additional unless otherwise specified at the time of purchase. We will collect applicable sales, use and other tax (collectively, “Tax”) on any Service used in jurisdictions for which we determine we have a duty to collect Tax applicable to your order. All orders are non-refundable except to the extent allowed by applicable law. We reserve the right to determine and adjust pricing for the Service in our sole discretion, at any time; provided, however, that if we change the pricing or other charges associated with the Service, we will provide advance notice of such changes.
b. Depictions of Products and Services and Changes. We take reasonable steps to depict our Service accurately on our Sites. However, images you see on your devise will depend on various factors including the age and quality of your device and internet connection and may not exactly reflect the actual detailing of a Service when you access it. For these reasons, we cannot guarantee the accuracy of images, descriptions and information shown on our Sites. In the event of an error on our Sites or in the description of the Service, in an order confirmation, in processing or delivering an order or otherwise, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel your order and issue you a partial or complete refund or credit. Your sole and exclusive remedy, and FYT’s sole and exclusive liability, will be to receive a refund for the amount you paid. FYT expressly reserves the right, at any time and without notice, to discontinue or change the specifications of any Service.
i. Membership. All memberships to the Service (a “Membership”), will continue and automatically renew until cancelled and your then-current Membership Term (as defined below) expires in accordance with these Terms and Conditions. By purchasing a Membership, you expressly acknowledge and agree that your Membership has recurring payment features and you accept responsibility for all recurring payment obligations (the “Membership Fee”) prior to cancellation of your Membership by you or by FYT and the expiration of your Membership Term. Your Membership will automatically renew for the duration of the membership period specified at the time of purchase or such other duration that you may otherwise select (“Membership Term”) until it is cancelled in accordance with these Terms and Conditions.
ii. Billing. Billing occurs on the date when you activate your Membership in accordance with this Section 4.c. and automatically recurs thereafter on a monthly basis as specified at the time of purchase (each, a “Billing Date”) during the term of the Membership. Your Membership will be automatically activated, and your first Billing Date will occur, at the time of your purchase of the Membership. You agree that FYT and any third-party payment processor we may use are authorized to charge you on each Billing Date for the monthly cost of your Membership (in addition to any applicable taxes and other charges) for as long as your Membership continues. We will bill your Membership Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information) in accordance with Section 4.d. below.
iii. Cancellation. You must cancel your Membership before your then-current Membership Term expires in order to avoid being charged the Membership Fee for the next recurring Membership Term. If you cancel your Membership, your Membership will automatically end at the expiration of your current Membership Term. All Membership Fees are fully earned upon payment and, except to the extent required by law, are not subject to refund or any pro rata credit or other offset upon cancellation. You may cancel the Membership online at any time by visiting the SUBSCRIPTION section under the profile settings in the FYT platform and selecting Cancel Subscription. When your Membership is cancelled, you will lose access to any feature of the Service that requires a membership. In the event you cancel your Membership, please note that we may still send you promotional communications about FYT or the Program, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
d. Authorization; Delinquent Accounts. By providing a credit card or other payment method that FYT accepts, you represent and warrant that you are authorized to use the designated payment method and that you authorize FYT (or our third-party payment processor) to charge all sums for the orders that you make for the Service as described in these Terms and Conditions or published by FYT, including all applicable taxes, to the payment method you provide and thereafter specified in your Account. If you pay any fees with a credit card, FYT (or our third party payment processor) may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase. FYT may suspend or terminate access to the Servicefor any Account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent Account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. You must resolve any payment method problems and unpaid fees and charges before we reinstate access to the Service. If you want to change or update your payment method information, you can do so at any time by logging into your Account. If a payment is not successfully settled and you do not edit your payment method information, you remain responsible for any uncollected amounts and authorize us to continue billing the payment method, as it may be updated. You acknowledge that the amount billed may vary due to promotional offers, preferences you select, changes you make to your Membership, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount.
e. Promotions. FYT, at its sole discretion, may make promotional offers with different features and/or different pricing, including offering free trials for specified periods of time without payment. Promotional offers, unless made to you, will not apply to your offer or these Terms and Conditions. If we offer you a promotional offer, the specific terms of your promotion will be provided in the materials describing the promotion. If a promotion includes a free trial, it is limited to one per household. IF A PROMOTIONAL OFFER PROVIDES FOR A FREE TRIAL IN CONNECTION WITH A PAID MEMBERSHIP, YOUR BILLING DATE WILL OCCUR UPON EXPIRATION OF THE APPLICABLE FREE TRIAL PERIOD AND WE (OR OUR THIRD-PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR MEMBERSHIP IN ACCORDANCE WITH SECTION 4.c. FOR AS LONG AS YOUR MEMBERSHIP CONTINUES. IF THE TERMS OF YOUR PROMOTIONAL OFFER EXPRESSLY PERMIT YOU TO CANCEL YOUR MEMBERSHIP PRIOR TO THE END OF YOUR FREE TRIAL, YOU MUST TIMELY CANCEL YOUR MEMBERSHIP PRIOR TO THE EXPIRATION OF THE APPLICABLE FREE TRIAL PERIOD OR YOU WILL BE CHARGED FOR THE PAID MEMBERSHIP UPON YOUR BILLING DATE. INSTRUCTIONS FOR CANCELING YOUR MEMBERSHIP ARE DESCRIBED IN SECTION 4.c.iii. ABOVE. PLEASE NOTE THAT YOU MAY NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR MEMBERSHIP HAS BEGUN. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.
a. Limited Rights. FYT grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control and access and use the Service on such mobile device that you own or control and on the tablet connected to the Product that you own or control.
b. Restrictions. Unless one of the following restrictions is not allowed by law, you agree that you may not:
i. distribute, reproduce, or display or perform publicly the Service, including any Components (as defined in Section 6.a.), including for any commercial purpose or for the benefit of any third party;
ii. use, display, mirror or frame the Service or any individual component of the Service, FYT’s name, any FYT trademark, logo or other proprietary information (including the FYT brand name or any trademarks of FYT’s affiliates or licensors), or the layout and design of any page or form contained on a page, without our prior express written consent;
iii. modify, alter, replicate, store, distribute or create derivatives from the Service (or any component of the Service, including any Components), except as expressly permitted in writing by us;
iv. access, use or exploit the Service (or any component of the Service) in order to build or develop a competitive or similar product or service; or
v. avoid, remove, bypass, deactivate, impair, interfere with or otherwise circumvent any feature or technological measure of the Service, including any security or access control mechanism designed to protect the Service and any content protection mechanisms designed to prohibit the downloading or export of Components.
6. Rights and Ownership.
a. Program and Components. As between you and FYT, the Service and the Sites and all content displayed or made available on or through, or otherwise included in, the Program, is owned and operated by FYT. The recordings, videos, music, visual and audio content, interfaces, designs, graphics, interactive features, information, data, computer code (including source code or object code), products, software, services, content, and all other elements of the Program, including any computer code installed on the Program (collectively, the “Components”) provided by FYT are protected by intellectual property and other laws and constitute valuable intellectual property of FYT or its licensors. The Service is licensed, not sold, to you, and your limited rights to access and use the Service are conditioned upon your compliance with these Terms and Conditions. No act of downloading or copying from, or otherwise using, the Program, even with FYT’s permission, will transfer any title, interest or right in or to the Service to you. Transfer of title to any Product does not include any Components included or embedded in the Product, which Components are made available to you under a license from FYT as specified herein. Except as expressly authorized by FYT in these Terms and Conditions, you may not copy, redistribute, reproduce, record, transfer, perform or display to the public, broadcast, make available to the public or otherwise make use of the Components. FYT and its licensors expressly reserve all rights to the Components not granted expressly in these Terms and Conditions, and FYT may revoke your license to use any part of the Program at any time. FYT’s licensors who own any of the Components are intended beneficiaries of these Terms and Conditions and shall have the right to enforce these Terms and Conditions against you.
b. Your Feedback. Separate and apart from User Content, you may provide or submit input, ideas, suggestions or other feedback regarding the Program (“Feedback”). Feedback is nonconfidential and shall become the sole property of FYT. FYT shall own, and you hereby assign to FYT, exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
7. Digital Millennium Copyright Act. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). FYT reserves the right, but not the obligation, to terminate your license to use, or otherwise disable your Account and access to the Program, in whole or in part, if we determine, in our sole and absolute discretion, that you are involved in infringing activity, including uploading, posting or sharing User Content that is infringing, regardless of whether you are a first-time or repeat infringer, and regardless of whether the material or activity is ultimately determined to be infringing. The foregoing processes does not limit our ability to pursue any other remedies we may have to address any suspected infringement or violation of these Terms and Conditions. If you have an intellectual property rights-related complaint about material posted on the Service or the Sites, you may contact our designated agent at the following address:
c/o In-Shape Health Clubs, LLC
6507 Pacific Ave. #344
Stockton, CA 95207
ATTN: Find Your FYT
Any notice alleging that materials hosted by or distributed through the Program infringe intellectual property rights must include the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed; (ii) a description of the copyrighted work or other intellectual property that you claim has been infringed; (iii) a description of the material that you claim is infringing and where it is located on the Program; (iv) your address, telephone number, and email address; (v) a statement by you that you have a good faith belief that the use of the materials on the Program of which you are complaining is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf. (See 17 U.S.C. § 512(c)(3).)
8. Third Party Sites
a. Third Party Services and Sites. FYT may provide options through the Program that enable you to export information, including User Content (defined below), to third party services (“Third-Party Services”), including through features that allow you to link your Account on FYT with an account on the Third-Party Service, such as Instagram, Twitter or Facebook, or through third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that FYT may transfer that information to the applicable Third-Party Service. FYT is not responsible for any Third-Party Service’s use of your exported information. We may also provide links to third party websites, applications to download or other digital properties, products or services of other persons or entities, including without limitation social media networks (collectively, “Third-Party Sites”). When you click on one of these links, you are leaving the Service or the Sites and accessing a Third-Party Site that is not under FYT’s control, and FYT is not responsible for their content. Including a tool to a Third-Party Service or a link to a Third-Party Site is not an endorsement by, or affiliation with, FYT of that Third-Party Service or Third-Party Site, as applicable, or its operator or its contents, services and/or offerings. FYT is not responsible for the legality, accuracy or inappropriate nature of any content, advertising, products or other materials on or available from any such Third-Party Service or Third-Party Site. Your rights and obligations when accessing and using these Third-Party Services and Third-Party Sites are governed by the terms and policies of those Third-Party Services or Third-Party Sites, as applicable. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD-PARTY SERVICES OR THIRD-PARTY SITES AND HAVE NO RESPONSIBILITY FOR SUCH THIRD-PARTY SERVICES OR THIRD-PARTY SITES OR THEIR FEATURES AND CONTENT. YOUR DECISION TO ACCESS AND USE ANY THIRD-PARTY SERVICE OR THIRD-PARTY SITE IS AT YOUR SOLE RISK, AND FYT WILL NOT BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS TO, USE OF OR RELIANCE ON ANY THIRD-PARTY SERVICES OR THIRD-PARTY SITES.
b. Third Party Software. The Program may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third Party Components”). Although the Program is provided to you subject to these Terms and Conditions, nothing in these Terms and Conditions prevents, restricts, or is intended to prevent or restrict you from obtaining Third Party Components under the applicable third party licenses or to limit your use of Third Party Components under those third party licenses.
9. User Materials and Content
a. Generally. Certain features of the Program may permit users to upload content to the Program, including messages, reviews, photos, video, images, data, information, text, works of authorship and other types of materials (“User Content”) and to publish User Content on the Program. If you decide to upload and publish your User Content through the Program, you understand that this User Content may be viewable by others in accordance with the privacy settings you establish. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Program.
b. License Granted to FYT. By providing User Content to or via the Program, you grant FYT a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to use, host, store, transfer, transmit, publicly display and perform, publish, reproduce, modify, adapt, make derivative works from (including, without limitation, translations), and distribute your User Content, in whole or in part, and your name, likeness, voice and persona in any manner and in any media formats and through any media channels now known or hereafter developed, for any purpose whatsoever, commercial or otherwise, without acknowledgment or compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content.
c. User Representations. FYT disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Program. By uploading, posting or otherwise providing User Content via the Program, you affirm, represent, and warrant that your User Content: (i) is created and owned by you, or you the right to authorize FYT to use and distribute your User Content as necessary in the manner contemplated by FYT, the Program and these Terms and Conditions; (ii) does not, and the use of such User Content as contemplated by these Terms and Conditions, will not: (a) infringe, violate, or misappropriate any third party right, including any confidentiality, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; (c) contain any personally identifiable information, including contact information, for you or any other person; (d) contain, distribute or facilitate the distribution of a software virus or any other computer code that is designed or intended to disrupt, damage, or limit the functioning of the Service or the Sites, in whole or in part, or any systems or equipment of FYT or any other end user; or (e) cause FYT to violate any law or regulation; (iii) is accurate, complete and in compliance with these Terms and Conditions and all applicable laws, rules and regulations and is not misleading or harmful in any manner; (iv) could not be deemed by a reasonable person to be objectionable, profane, indecent, obscene, pornographic, sexually explicit, harassing, threatening, embarrassing, hateful, or otherwise inappropriate, and does not contain or depict, and you may not use, any symbols, words or slurs that are widely considered offensive to individuals of a certain race, gender, ethnicity, religion, sexual orientation or socioeconomic group; (v) does not contain, depict or promote any unreasonably dangerous or reckless behavior or activity, including without limitation violence, abuse, cruelty to animals, use of illegal drugs, excessive or inappropriate use of alcohol or legal drugs or any conduct that constitutes a criminal offense or gives rise to civil liability; and (vi) does not contain, depict or promote, any advertising or commercial activity, including without limitation by offering products or services, conducting sweepstakes or contests, or otherwise sharing or transmitting unsolicited advertising, spam or junk or bulk messages.
d. Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. We may, however, in our sole discretion and at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms and Conditions or is otherwise objectionable, suspend or terminate your Account or access to the Program, and/or take such further steps as may be available to FYT including reporting you to appropriate law enforcement or governmental officials or seeking other legal or equitable remedies. You understand that when using the Program, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against FYT with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms and Conditions, we may investigate the allegation and determine in our sole discretion whether to remove the User Content and/or suspend or terminate the applicable Account or access to the Program, which we reserve the right to do at any time and without notice. For clarity, FYT does not permit copyright-infringing activities on the Program.
10. Certain Conduct Prohibited. By using the Program, you agree that you will abide by these terms and agree not to: (a) use the Program for any illegal purpose or in violation of any local, state, national, or international law; (b) harass, threaten, demean, embarrass, or otherwise harm any other user of the Program; (c) violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right; (d) avoid, remove, bypass, circumvent, deactivate, impair or otherwise interfere with security-related features of the Program, including by: (i) disabling or circumventing features that prevent or limit use or copying of any Components; (ii) reverse engineering, decompiling, disassembling or otherwise attempting to discover the source code of any portion of the Program (including without limitation the Service and the Components) except to the extent that the activity is expressly permitted by applicable law; or (iii) attempting to modify the Service or any Components obtained through the Service for any reason whatsoever, including for the purpose of disguising or changing any indications of the ownership or source of the Components; (e) bypass any territorial restrictions, including IP address-based restrictions, that may be applied to the Program; (f) download or install any third-party software and/or application on the Service (excluding assistive technologies that are necessary for your own use of the Program, such as screen-readers) that is not expressly permitted by us in writing; (g) interfere with, or attempt to interfere with, the operation of the Service or any user’s access to or enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any system, network, equipment, or server connected to or used to provide the Service, including by overloading, flooding, spamming or mail-bombing the Service; (h) access, tamper with or use non-public areas of the Program, FYT’s computer systems or networks or the technical delivery systems of FYT’s providers, or attempt to probe, scan or test the vulnerability of any FYT system or network or breach any security or authentication measures; (i) attempt to access, scrape or search the Program or download any Components or other content from the same, including through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools, plugins, add-ons or the like), other than the software and/or search agents provided by FYT or other generally available third-party web browsers; (j) use any meta tags or other hidden text or metadata utilizing a trademark, logo, URL or product name of FYT, or of any of its affiliated companies or licensors, without our prior express written consent; (k) copy, use, disclose or distribute any information or data obtained from the Program, whether directly or through third parties (such as search engines or third-party websites), without our prior express written consent; (l) perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Account without permission, or falsifying your age or date of birth; (m) sell or otherwise transfer the access granted under these Terms and Conditions or any Components or any right or ability to view, access, or use any Components; (n) provide your password or Account credentials to any other person or use any other person’s username and password; or (o) attempt to do any of the acts described in this Section 10 or assist, encourage or permit any person in engaging in any of the acts described in this Section 10.
We reserve the right to monitor access to or use of the Program and remove or disable access to all or any part of the Program, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of your conduct to be objectionable or in violation of these Terms and Conditions.
11. Term, Termination and Modification of the Service
a. Term. These Terms and Conditions are effective beginning when you (a) accept the Terms and Conditions, (b) visit, access or use the Sites or any mobile applications provided by or on behalf of FYT (including the Service), (c) register for an Account, (d) click “Continue,” “Login,” “Place Order,” or other similar button when using the Program, or (e) download, install, or otherwise access or use the Program in any way, in each such case whichever occurs first, and ending when terminated as described in Section 11.b.
b. Termination. If you violate any provision of these Terms and Conditions, your authorization to access the Program, and these Terms and Conditions, automatically terminates. In addition and notwithstanding anything contained in these Terms and Conditions, FYT reserves the right, at its sole discretion, to suspend, terminate or delete these Terms and Conditions or the Program or your access thereto (including your Account) at any time for any reason or no reason, with or without notice. You acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law. If FYT deletes your Account, you may not re-register for or use the Program under any other user name or profile. FYT may block your access to the Program to prevent re-registration. You may cancel your Account or your Membership in accordance with Section 4.c.
c. Effect of Termination. Upon termination of these Terms and Conditions: (a) your license rights set forth herein will terminate and you must immediately cease all use of the Program; (b) you will no longer be authorized to access your Account or the Program; (c) we have the right to immediately delete all data, files, and other information or User Content stored in or for your Account without further notice to you; (d) you must pay FYT any unpaid amount that was due prior to termination; and (e) all payment obligations accrued prior to termination and Sections 6, 11.c., 13, 14, 15, 16 and 17 will survive.
d. Changes. FYT reserves the right to modify, suspend or discontinue the Program at any time (including by limiting or discontinuing certain features of the Program), temporarily or permanently, without notice to you.
12. Modification of these Terms and Conditions. We reserve the right to update, change or amend these Terms and Conditions at any time and in our sole discretion. If we update, change or amend these Terms and Conditions, we will provide notice of same, at our option, by sending an email notification to the email address listed in your Account, providing notice through the Sites and/or the Service or updating the “Last Updated” date at the beginning of these Terms and Conditions. Updates will be effective on the date specified in the notice. We may require that you accept any modified Terms and Conditions (e.g., by clicking “I Accept” or other similar button) in order to continue using the Service. You agree to read the Terms and Conditions whenever we update them before you use the Program. If you continue to access or use the Program after we have posted updated Terms and Conditions, you are agreeing to accept and be bound by the updated Terms and Conditions.
13. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Program, and you agree to indemnify, defend and hold harmless FYT and its affiliates, and each of their respective past, present and future employees, officers, directors, contractors, consultants, equityholders, suppliers, vendors, service providers, licensors, parent companies, subsidiaries, agents, representatives, predecessors, successors and assigns (together, the “FYT Entities”) from and against all actual or alleged FYT Entity or third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to: (a) any use or misuse of the Program or any Components therein by you or any third party who accesses or uses the Program on your behalf or through your Account; (b) your violation of any portion of these Terms and Conditions, any representation, warranty, or agreement referenced in these Terms and Conditions, or any applicable law, rule or regulation; (c) your violation of any intellectual property right, publicity, confidentiality, other property or privacy right or any other third-party right; (d) any User Content you create, post, share or store on or through the Program or our pages or feeds on third-party social media platforms; (e) any Feedback you provide; or (f) any dispute or issue between you and any other party. You agree to promptly notify FYT of any third-party Claims, cooperate with the FYT Entities in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the FYT Entities shall have control of the defense or settlement of any third-party Claims (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and FYT.
a. The Program and all Components available through the Program are provided “AS IS” and on an “AS AVAILABLE” basis without any warranties of any kind, either express or implied. You therefore use the Program at your own risk. FYT DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE PROGRAM AND ALL COMPONENTS AVAILABLE THROUGH THE PROGRAM, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. FYT does not warrant that the Program or any portion of the Program, or any Components offered through the Program, will be uninterrupted, secure, or free of errors, viruses, or other harmful Components, and FYT does not warrant that any of those issues will be corrected. Without limiting the foregoing, FYT and the other FYT Entities make no representations or warranties that: (i) the Program is or will be permitted in your jurisdiction; (ii) concerning any content included in the User Content; (iii) concerning any third party’s use of User Content that you submit; (iv) concerning any sites or resources outside of the Program, even if linked to from the Program, and including Third-Party Sites or Third-Party Services; (v) that the Program will meet your personal or professional needs; or (vi) that FYT will continue to support the Program or any particular feature of the Program.
No advice or information, whether oral or written, obtained by you from the Program or any FYT Entities or any Components available through the Program will create any warranty regarding any of the FYT Entities or the Program that is not expressly stated in these Terms and Conditions. FYT IS NOT RESPONSIBLE FOR ANY INJURY, DEATH, PROPERTY OR OTHER DAMAGE OR LOSS OF DATA (INCLUDING USER CONTENT) THAT MAY RESULT FROM THE PROGRAM, YOUR USE OF THE SERVICE OR ANY COMPONENTS THEREIN, OR YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE PROGRAM AT YOUR OWN DISCRETION AND RISK.
The limitations, exclusions, and disclaimers in this section 14 and section 15 apply to the fullest extent permitted by law.
15. Release and Limitation of Liability
a. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FYT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, DAMAGES FOR BUSINESS INTERRUPTION OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR IN ANY WAY RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE PROGRAM OR ANY COMPONENTS ON THE PROGRAM, OR RELATING TO THE ORDER, RECEIPT OR USE OF THE PROGRAM, OR OTHERWISE RELATED TO THESE TERMS (including, but not limited to, any damages caused by or resulting from reliance on any information obtained from any FYT Entity, or from events beyond the FYT Entities’ reasonable control, such as site interruptions, deletions of files or emails, errors or omissions, defects, bugs, viruses, trojan horses or other malware or ransomware, delays in operation or transmission or any failure of performance, whether or not resulting from acts of God, communications failure, theft, destruction or unauthorized access to any FYT Entity’s records, programs or systems), regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute, or any other legal or equitable theory, and whether or not any FYT Entity has been informed of the possibility of such damages and regardless of whether such damages were foreseeable.
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 16.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE FYT ENTITIES (JOINTLY) TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE ORDER, RECEIPT, USE OF OR ANY INABILITY TO USE ANY PORTION OF THE PROGRAM OR OTHERWISE ARISING UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO FYT FOR ACCESS TO AND USE OF THE SERVICE IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; AND (II) $100.
b. APPROPRIATE ALLOCATION. Each provision of these Terms and Conditions that provides for a limitation of liability, disclaimer of warranties, exclusion of damages or release is intended to and does allocate the risks between the parties under these Terms and Conditions. This allocation is an essential element of the basis of the bargain between the parties. Each of these provision is severable and independent of all other provisions of these Terms and Conditions. The limitations in this Section 15 will apply even if your remedies hereunder fail of their essential purpose, and the foregoing shall constitute the FYT Entities’ sole liability and obligation in respect hereof, regardless of the form of action, whether based in warranty, contract, tort (including negligence), statute, or any other legal or equitable theory.
c. RELEASE. You acknowledge that you have agreed to the assumptions of risk and limited warranties described in these Terms and Conditions. Therefore, on behalf of yourself, your heirs, executors, administrators, legal and personal representatives and anyone else who might sue on your behalf, you assume the risk of injury, property damage or other harm from your use of the Program and, to the fullest extent permitted by applicable law, you hereby irrevocably release, forever discharge and agree, to the fullest extent permitted by applicable law, to hold harmless the FYT Entities from, and covenant not to sue any such FYT Entities for, any injury, illness, death or property damage, and any other claim, action, demands, damage, expense or loss, whether known or unknown, foreseen or unforeseen, anticipated or unanticipated, related to your use of the Program, even if the foregoing results, in whole or in part, from the fault or negligence of any FYT Entities. It is further understood and agreed that all rights under section 1542 of the Civil Code of the State of California and any similar law of any state or territory of the united states are hereby expressly waived. Section 1542 reads as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
16. Dispute Resolution and Arbitration
a. Generally. In the interest of resolving disputes between you and FYT in the most expedient and cost effective manner, and except as described in Section 16.b. and 16.d., you and FYT agree that every dispute, claim, suit, action, causes of action, demand or proceedings (collectively, “Disputes”) arising in connection with these Terms and Conditions (including any Dispute arising from your purchase or use of the Program) will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate Disputes includes all claims arising out of or relating to any aspect of these Terms and Conditions, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms and Conditions. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FYT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Despite the provisions of Section 16.a., nothing in these Terms and Conditions will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) seek injunctive relief in a court of law in aid of arbitration; or (c) to file suit in a court of law to address an intellectual property infringement claim.
c. No Class Actions. YOU AND FYT AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OR THE PROGRAM IS PERSONAL TO YOU AND FYT AND THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING. You and FYT agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, unless both you and FYT agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding, whether within or outside of arbitration.
Opt-Out. If you do not wish to resolve Disputes by binding arbitration, you may opt out of the provisions of this Section 16 within 30 days after the date that you agree to these Terms and Conditions by sending a letter to FYT c/o In-Shape Health Clubs, LLC, 6507 Pacific Ave. #344, Stockton, CA 95207, ATTN: Find Your FYT. In order to be effective, the letter must specify: your full legal name, the email address associated with your Account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once FYT receives your Opt-Out Notice, this Section 16 will be void and you are agreeing that any Dispute arising out of these Terms and Conditions will be resolved as set forth in Section 17.b. The remaining provisions of these Terms and Conditions will not be affected by your Opt-Out Notice.
d. Arbitrator; Rules of JAMS. You and FYT agree that these Terms and Conditions affect interstate commerce and that the enforceability of this Section 16 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law. You and FYT further agree that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference. As limited by the FAA, these Terms and Conditions and the applicable JAMS rules, the arbitrator will have (i) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (ii) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms and Conditions. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims or preside over any type of class or representative proceeding. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms and Conditions, you either (i) acknowledge and agree that you have read and understand the rules of JAMS, or (ii) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. The arbitrator has exclusive authority to resolve any Dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
e. Notice; Process. You and FYT agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. A party who intends to seek arbitration must first send a written notice of the dispute to the other party (“Notice of Arbitration”). FYT’s address for any Notice of Arbitration is: c/o In-Shape Health Clubs, LLC, 6507 Pacific Ave. #344, Stockton, CA 95207, ATTN: Find Your FYT. Your Notice of Arbitration must include (a) your name, postal address, telephone number, the email address you use or used for your Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our Notice of Arbitration to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. The parties will make good faith efforts to resolve the Dispute directly, but if the parties do not reach an agreement to do so within sixty (60) days after the Notice of Arbitration is received, you or FYT may commence an arbitration proceeding. All arbitration proceedings between the parties will be conducted in accordance with Section 16.e. During the arbitration, the amount of any settlement offer made by you or FYT must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by FYT in settlement of the dispute prior to the award, FYT will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000. EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 11 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND FYT AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR FYT WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND FYT WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE).
f. Fees. Payment of all filing, administration and arbitrator fees will be governed by the rules of JAMS. If you assert a claim against FYT, you will be responsible for paying a $250 consumer filing fee. FYT will pay for all other filing, administration and arbitrator fees and expenses. If your Dispute is for less than U.S. $10,000 (including attorneys’ fees and costs) and the arbitrator, upon final disposition of the case, finds your Dispute was not frivolous, FYT will reimburse your initial filing fee. If we prevail in arbitration, we will pay all of our attorneys’ fees and costs and won’t seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law.
g. Modifications. If FYT makes any future change to this arbitration provision, other than a change to FYT’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to FYT’s address for Notice of Arbitration, in which case your Account with FYT will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
h. Severability; Enforceability. If any term, clause or provision of this Section 16 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 16 will remain valid and enforceable. Further, the waivers set forth in Section 16.c. are severable from the other provisions of these Terms and Conditions and will remain valid and enforceable, except as prohibited by applicable law. If FYT receives an Opt-Out Notice from you, then the entirety of this Section 16 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 17.b. will govern any action arising out of or related to these Terms and Conditions.
b. Governing Law. These Terms and Conditions, and your access to and use of the Service and the Sites and Program, shall be governed by and construed and enforced in accordance with the laws of the State of California without regard to conflict of law principles that would cause the application of the laws of any other jurisdiction. For any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, you and FYT submit to the personal and exclusive jurisdiction of the state courts and federal courts of the State of California and the United States, respectively, located within the State of California, County of San Joaquin. We operate the Service from our offices in California, and we make no representation that Components included in the Program are appropriate or available for use in other locations.
c. Force Majeure. FYT will not be liable to you for any delay in delivery of the Product or your inability to access the Service, including any delay or lack of access due to an event beyond FYT’s reasonable control, such as an act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made condition outside of FYT’s control. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms and Conditions or any order that is caused by events outside our reasonable control.
d. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Program or to receive further information regarding use of the Program.
e. Customer Support. You may request support for the Program by contacting us at email@example.com. We will attempt to respond to all requests within a reasonable time frame, but we cannot assure you that any requests will be responded to within any particular time frame or that we will be able to answer any such requests.
f. International Use. The Program is intended for users located within the United States only. We make no representation that the Program is appropriate or available for use outside of the United States. Access to the Program from countries or territories or by individuals where such access is illegal is prohibited.
18. Notice Regarding Apple iOS Devices. This Section 18 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms and Conditions are between you and FYT only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms and Conditions, and upon your acceptance of these Terms and Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms and Conditions against you as a third party beneficiary of these Terms and Conditions. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
Updated October 15, 2020