Last Updated: September 30, 2021
Welcome, and thank you for your interest in FITGMR Inc. (“FITGMR,” “we,” or “us”) and our website at www.FITGMR.gg, along with our related websites (including the Team Portal), hosted and mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and FITGMR regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND FITGMR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for maYers that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See SecEon 17.)
1. FITGMR Service Overview. FITGMR offers a platform that helps traditional and esports athletes (“Athletes”) optimize their performance. The Service makes available various fitness and wellness tools that are intended to empower users to track their own habits and behavior through education and user-driven analytic tools for users to improve their training goals and performance. FITGMR uses user-input information and responses to questions in five different areas (Sleep, Physical Maintenance, Nutrition, Mental Conditioning, and Lifestyle) to calculate a score between 0 and 100. Users set their own goals or target scores, and the score is provided for general informational purpose only to help users track their progress toward their own fitness, lifestyle or general wellness goals. Athletes may use the Service on an individual basis, or as part of a “team” organized by the general manager or coach of that team (each, a “Team”). The general manager or coach of a Team will have access to a web portal (the “Team Portal”) which makes available certain data and other information from its Athletes’ Accounts to help the Team better manage and train its Athletes.
2.1. Age. If you are a user accessing or using the Service, you represent and warrant to us that:
(a) You are at least 13 years old; or
(b) If you are between 13 and 17 years old, your parent or legal guardian has reviewed and discussed these Terms with you, agreed to these Terms on your behalf, set up your account for you, and supervises your use of the Service.
2.2. Parents or Legal Guardians. If you are a parent or legal guardian of a child under the age of 18 who would like to access and use the Service, you, on your own behalf and your child’s behalf, agree to these Terms and to supervise your child’s use of the Service, and acknowledge that your child’s use of the Service will be subject to these Terms.
2.3. In General. Additionally, you represent and warrant to us that: (a) you have not previously been suspended or removed from the Service; and (b) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration.
3.1. In General. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your email address and other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it 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 you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at email@example.com.
3.2. Teams. Subject to these Terms, Team coaches and managers can set up a team account on the Team Portal on the Service (“Team Account”). To set up a Team Account, you may be required to provide us with certain information, including, as applicable, your name, your Team’s name, your email address, your Team’s email address, your Team’s roster, and the email addresses associated with the Accounts of each Athlete on your Team’s roster. If you provide any information to us about any third party (such as an Athlete or the parent or legal guardian of an Athlete), you represent and warrant that you have the authorization or permission to provide that information and to authorize us to use that information for the purposes that information is provided for. You may invite Athletes with valid Athlete Accounts to be linked with your Team Account, and if the Athletes accept such invitation, those Athletes and their Athlete Accounts will become associated with your Team Account (each Athlete while associated with your Team Account, “your Athlete”). You may use the Team Portal to add or remove Athlete Accounts, and to view any available data or other information resulting from the use of the Service by your Athletes.
3.3. Athletes. An Athlete must have an “Athlete Account” (each Team Account or Athlete Account, an “BU”) to use the Service. To do so, you may be required to provide us with name, email, and other contact information. If you receive an invitation to be linked with a Team Account and you accept that invitation, your Account will be linked with the Team Account and you agree to share, and for us to share on your behalf, any data or information associated with your Account with your Team. If your Athlete Account is released from a Team Account for any reason and these Terms have not otherwise been terminated, then you may continue using certain portions of the Service subject to these Terms (including Section 4.4). If you are an Athlete under the age of 18, your parent or legal guardian must set up your Athlete Account and agree to these Terms on your behalf.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for in these Terms.
4.1. Price. FITGMR reserves the right to determine pricing for the Service. FITGMR will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. FITGMR may change the fees for any feature of the Service, including additional fees or charges, if FITGMR gives you advance notice of changes before they apply to you. FITGMR, at its sole discretion, may make promotional offers with different features and different pricing to any of FITGMR’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.2. Authorization. You authorize FITGMR to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by FITGMR, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then FITGMR 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.
4.3. Subscription Service. TBD
4.4. Free Trials. TBD
4.5. Teams & Athletes. Pricing may differ for each type of user of the Service, such as Teams and Athletes. If your Athlete Account is linked with a Team Account, your fees may be waived depending on our agreement with your Team. However, when your Athlete Account is disassociated with a Team Account, you may be required to pay fees for continued use of the Service.
4.6. Delinquent Accounts. FITGMR may suspend or terminate access to the Service, including fee- based portions of the Service, for 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. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then FITGMR reserves the right to delete your account and any information or User Content (defined below) associated with your account without any liability to you.
5.1. Limited License. Subject to your complete and ongoing compliance with these Terms, FITGMR grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non- transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service (whether installed by you or pre-installed on your mobile device by the device manufacturer or a wireless telephone provider) on a mobile device that you own or control; and (b) access and use the Service.
5.2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including, but not limited to, any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3. Feedback. We respect and appreciate the thoughts and comments from our users If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant FITGMR an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6. Ownership; Proprietary Rights. The Service is owned and operated by FITGMR. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by FITGMR (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of FITGMR or its third-party licensors. Except as expressly authorized by FITGMR, you may not make use of the Materials. There are no implied licenses in these Terms and FITGMR reserves all rights to the Materials not granted expressly in these Terms.
7. Third-Party Terms
7.2. Third-Party Software. The Service 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 Service is provided to you subject to these Terms, nothing in these Terms 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.
8. User Content
8.1. User Content Generally. Certain features of the Service may permit users to submit, upload, publish, or otherwise transmit (“Post”) content to the Service, including messages, reviews, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
8.2. Limited License Grant to FITGMR. By Posting User Content to or via the Service, you grant FITGMR a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from FITGMR’s exercise of the license set forth in this Section.
8.3. Limited License Grant to Other Users. By Posting User Content to or via the Service and making it available to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4. You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. FITGMR 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 Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
(a) you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize FITGMR and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by FITGMR, the Service, and these Terms;
(b) your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause FITGMR to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
(c) your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. FITGMR may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, 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 FITGMR with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, FITGMR does not permit infringing activities on the Service.
9.1. Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2. Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10. Prohibited Conduct. YOU AGREE NOT TO:
10.1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2. harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
10.3. violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.4. access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by FITGMR;
10.5. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.6. interfere with the operation of the Service or any user’s 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 network, equipment, or server connected to or used to provide the Service;
10.7. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identify, accessing any other Service account without permission;
10.8. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
10.9. attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11. Intellectual Property Rights Protection
11.1. Respect of Third Party Rights. FITGMR respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
11.3. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property right that you claim has been infringed;
(c) a description of the material that you claim is infringing and where it is located on the Service;
(d) your address, telephone number, and email address;
(e) a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
(f) a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
Your Notification of Claimed Infringement may be shared by FITGMR with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to FITGMR making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.4. Repeat Infringers. FITGMR’s policy is to: (a) remove or disable access to material that FITGMR believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. FITGMR will terminate the accounts of users that are determined by FITGMR to be repeat infringers. FITGMR reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
11.5. Counter Notification. If you receive a notification from FITGMR that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide FITGMR with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to FITGMR’s Designated Agent through one of the methods identified in Section 11.2, and include substantially the following information:
(a) your physical or electronic signature;
(b) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(c) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(d) your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which FITGMR may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of that person.
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.6. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to FITGMR in response to a Notification of Claimed Infringement, then FITGMR will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that FITGMR will replace the removed User Content or cease disabling access to it in 10 business days, and FITGMR will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless FITGMR’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on FITGMR’s system or network.
11.7. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [FITGMR] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” FITGMR reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12. Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13. Term, Termination, and Modification of the Service
13.1. Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2. Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, FITGMR may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at TOS@fitgmr.gg.
13.3. Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay FITGMR any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 8, 13.3, 14, 15, 16, 17, and 18 will survive. You are solely responsible for retaining copies of any User Content you Post to the Service since upon termination of your account, you may lose access rights to any User Content you Posted to the Service. If your account has been terminated for a breach of these Terms, then you are prohibited from creating a new account on the Service using a different name, email address or other forms of account verification.
13.4. Modification of the Service. FITGMR reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. FITGMR will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. However, if we discontinue any Subscription Service in the middle of a Subscription Period without replacing it with a materially comparable offering, we will refund to you any Subscription Fees prepaid by you for that discontinued Subscription Service for the remaining portion of the Subscription Period. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify FITGMR, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “FITGMR Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. If you are a Team, you will also defend and indemnify the FITGMR EnEEes against any third-party claim and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with the failure to comply with these Terms or unauthorized use of the Service by your Athletes. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15. Disclaimers; No Warranties by FITGMR
15.1. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. FITGMR DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, 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. FITGMR DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND FITGMR DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. WE DO NOT GUARANTEE THAT USING THE SERVICE WILL PRODUCE ANY PARTICULAR RESULT, INCLUDING ANY IMPROVEMENT IN YOUR, YOUR ATHLETE, OR YOUR TEAM’S PERFORMANCE.
15.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR FITGMR ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE FITGMR ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE DO NOT GUARANTEE ANY IMPROVEMENT IN YOUR PERFORMANCE, OR ANY OTHER SPECIFIC RESULT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE (INCLUDING ANY INJURY YOU MAY SUFFER OR ILLNESS YOU MAY CONTRACT WHILE USING THE SERVICE) AND YOUR DEALING WITH ANY OTHER USER OF THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. YOU UNDERSTAND THAT THE FITNESS PROGRAMS OR CLASSES MADE AVAILABLE ON OR VIA THE SERVICE HAVE INHERENT RISKS AND MAY INVOLVE STRENUOUS PHYSICAL ACTIVITIES. YOUR PARTICIPATION IN ANY FITNESS PROGRAMS OR CLASSES IS VOLUNTARY AND AT YOUR OWN RISK, AND YOU ASSUME FULL RESPONSIBILITY FOR ANY AND ALL RISKS YOU EXPOSE YOURSELF TO WITH SUCH PARTICIPATION, WHICH MAY INCLUDE BODILY INJURY. YOU HEREBY RELEASE FITGMR ENTITIES FROM ANY AND ALL LIABILITY ARISING FROM OR RELATING TO ANY BODILY INJURY SUSTAINED IN CONNECTION WITH YOUR USE OF THE SERVICE.
15.3. The Service and all materials and content available through the Service are intended for general informational purposes only. FITGMR, or its Service, uses user-input information and responses to questions in five different areas (Sleep, Physical Maintenance, Nutrition, Mental Conditioning, and Lifestyle) to calculate a score between 0 and 100. Users set their own goals or target scores, and the score is provided for general informational purpose only to help users track their progress toward their own fitness, lifestyle or general wellness goals. Along with other user-input data, the Service, including any scores provided therein, empowers you with information so you can make your own nutritional, physical fitness, and lifestyle decisions. The Service does not provide any recommendations to alter or to change any prescribed treatment or therapy. The score is not an indicator of your fitness level or health status or condition. Information provided by Service does not constitute medical advice and should not be relied upon for any medical, therapeutic, diagnostic, or clinical purposes. How you use the information or any scores provided by the Service is entirely up to you. You should always consult with a healthcare professional before you begin or change any diet or exercise program. If you have any medical condition that you believe could be affected by your use of the Service, consult with your physician prior to using the Service.
You should always seek the advice of a healthcare professional with any questions you may have regarding your health or medical condition. You should never delay obtaining medical advice or disregard any medical advice because of your use of the Service, or something you have read or have not read on the Service. We do not warrant the accuracy, completeness or usefulness of any information or content provided through the Service. No information contained on the Service is intended to diagnose, treat, prevent, cure or mitigate a disease or health condition. You acknowledge and agree that none of the information or content provided through the Service has the ability to diagnose, treat, prescribe, or perform any task that constitutes the practice of medicine or medical advice. Any reliance you place on such information is strictly at your own risk. We assume no responsibility for any consequences relating directly or indirectly to any action or inaction you may take based upon your use of the Service or the information provided through the Service.
15.4. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. FITGMR does not disclaim any warranty or other right that FITGMR is prohibited from disclaiming under applicable law.
16. Limitation of Liability
16.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FITGMR ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY FITGMR ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
16.2. EXCEPT AS PROVIDED IN SECTIONS 17.5 AND 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE FITGMR ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO FITGMR FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17. Dispute Resolution and Arbitration
17.1. Generally. In the interest of resolving disputes between you and FITGMR in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and FITGMR agree that every dispute arising in connection with these Terms, the Service, and communications from us 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, the Service, or any communications to or from us, 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. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND FITGMR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2. Exceptions. Despite the provisions of Section 17.1, nothing in these Terms 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) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3. Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to FITGMR Inc., Attention: Legal Department – Arbitration Opt-Out, 29500 Heathercliff Road, Space 202, Malibu, CA 90265, United States, that specifies: your full legal name, the email address associated with your Account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once FITGMR receives your Opt-Out Notice, this
Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4. Arbitrator. Any arbitration between you and FITGMR will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting FITGMR. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). FITGMR’s address for Notice is: FITGMR Inc., 29500 Heathercliff Road, Space 202, Malibu, CA 90265, United States. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or FITGMR may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or FITGMR 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 FITGMR in settlement of the dispute prior to the award, FITGMR will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) US$10,000.
17.6. Fees. If you commence arbitration in accordance with these Terms, FITGMR will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your residence, but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your residence. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse FITGMR for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.7. No Class Actions. YOU AND FITGMR AGREE THAT EACH 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 REPRESENTATIVE PROCEEDING. Further, unless both you and FITGMR 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.
17.8. Modifications to this Arbitration Provision. If FITGMR makes any future change to this arbitration provision, other than a change to FITGMR’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to FITGMR’s address for Notice of Arbitration, in which case your account with FITGMR will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9. Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if FITGMR receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.2. Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and FITGMR submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.4. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.6. Contact Information. The Service is offered by FITGMR Inc., located at 29500 Heathercliff Road, Space 202, Malibu, CA 90265, United States. You may contact us by sending correspondence to that address or by emailing us at firstname.lastname@example.org.
18.7. Notice to California Residents. If you are a California resident, then 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 +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
19. Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and FITGMR only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. 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. 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: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) 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 upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.