FITNESSE Terms of SERVICE
August 28, 2023
Fitnesse Inc., dba Fitnesse (“Fitnesse,” “we,” “our,” or “us”) is a supplier of fitness products and apparel that provide affordability, accessibility, and quality to deliver a superior on-the-go training experience. This page explains the terms and conditions by which you may visit our websites and social media pages and use our hardware, software and online and mobile technology solutions (collectively, our “Service”). By accessing or using our Service, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by these Terms of Service (this “Agreement”), and to the collection and use of your information as set forth in our Privacy Policy available at https://www.teamfitnesse.com/privacy-policy (our “Privacy Policy”), whether or not you are a registered user of our Service. We reserve the right to modify this Agreement and will provide notice of these changes as described below. This Agreement applies to all visitors, users, and others who access our Service (collectively, “Users”).
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
Our Service
Eligibility
This is a contract between you and Fitnesse. You must read and agree to this Agreement before using our Service. If you do not agree to this Agreement, you may not use our Service. You may use our Service only if you can form a binding contract with us, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to our Service by anyone under 18 is strictly prohibited and in violation of this Agreement. Our Service is not available to any Users we previously removed from our Service.Access and Use
Subject to your compliance with the terms and conditions of this Agreement, you may access and use our Service solely for your personal, non-commercial use. We reserve all rights not expressly granted by this Agreement in and to our Service and our Intellectual Property (defined below). We may suspend or terminate your access to our Service at any time for any reason or no reason.Restrictions
You will not, and you will not assist, permit or enable others to, do any of the following:
use our Service for any purpose other than as expressly set forth in Section 1.2 above;
disassemble, reverse engineer, decode or decompile any part of our Service;
use any robot, spider, scraper, data mining tool, data gathering or extraction tool, or any other automated means, to access, collect, copy or record the Service;
copy, rent, lease, sell, transfer, assign, sublicense, modify, alter, or create derivative works of any part of our Service or any of our Intellectual Property;
remove any copyright notices or proprietary legends from our Service;
use our Service in a manner that impacts: (i) the stability of our servers; (ii) the operation or performance of our Service or any other User’s use of our Service; or (iii) the behavior of other applications using our Service;
use our Service in any manner or for any purpose that violates any applicable law, regulation, legal requirement or obligation, contractual obligation, or any right of any person including, but not limited to, intellectual property rights, rights of privacy and/or rights of personality, or which otherwise may be harmful (in our sole discretion) to us, our providers, our suppliers or Users;
use our Service in competition with us, to develop competing products or services, or otherwise to our detriment or commercial disadvantage;
use our Service for benchmarking or competitive analysis of our Service;
attempt to interfere with, compromise the system integrity or security of, or decipher any transmissions to or from, the servers running our Service;
transmit viruses, worms, or other software agents through our Service;
impersonate another person or misrepresent your affiliation with a person or entity, hide or attempt to hide your identity, or otherwise use our Service for any invasive or fraudulent purpose;
share passwords or authentication credentials for our Service;
bypass the measures we may use to prevent or restrict access to our Service or enforce limitations on use of our Service or the content therein, including without limitation features that prevent or restrict use or copying of any content;
identify us or display any portion of our Service on any site or service that disparages us or our products or services, or infringes any of our intellectual property or other rights;
identify or refer to us or our Service in a manner that could reasonably imply an endorsement, relationship or affiliation with or sponsorship between you or a third party and us, other than your permitted use of our Service under this Agreement, without our express written consent.
FItnesse Training Club (FTC) Terms
ACCOUNTS
In order to access some features of the website, you will have to create a Fitnesse account. You may never use another person’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify us immediately of any breach of security or unauthorized use of your account.
PURCHASE & REFUND POLICY
Classes and trainer assignments are subject to change. Pricing is subject to change without notice. All class packages are non-transferable and non-refundable; there are no exceptions. Single classes expire 31 days from date of purchase. 5 class packages expire 6 months from date of purchase. 10 class packages expire 6 months from the date of purchase. Memberships auto-renew every 31 days from the date of purchase.
REGISTRATION AND CLASS RESERVATIONS
Fitnesse Training Club offers classes and programs on either a monthly basis, in packages of classes, or individually (“Drop-In”). Registration may be completed online or at any Fitnesse Training Club location. Once you have registered, you may reserve a space in a Fitnesse Training Club class up to two weeks in advance using a rolling 14-day window.
Your credit/debit card will be charged either at the time you purchase a monthly membership, a package of classes, or at the time of reservation, if you are purchasing an individual Drop-In class. If your payment method presented cannot be processed or if you otherwise fail to pay all fees or charges when due, services or privileges may be suspended or terminated. You are responsible and liable for all fees, including attorneys' fees and collection costs, that Fitnesse Training Club may incur in its efforts to collect any unpaid balances from you.
Classes must be canceled and waitlist cancellations must occur at least 12 hours in advance of the start of class. If you put yourself on the waitlist you need to look out for emails up to 12 hours in advance and check your schedule under your account to see if you’ve gotten in. If you were moved into the class, we assume you will be coming unless you notify us that you can’t make it.
Members who purchase ANY membership package (such as, but not limited to Unlimited Membership or future promotional programs or membership packages) are subjected to a penalty charge for either a late cancel($10 fee) or an absence should they not cancel their reservation within the allotted 12-hour window($20 fee).
MEMBERSHIP CANCELLATIONS
Members may cancel their membership at any time. To cancel your account’s Monthly Membership, you must email studio@teamfitnesse.com a minimum of (5) days PRIOR to your billing cycle with the desired end date of automatic membership renewals. All previous billing charges are non-refundable.
PERSONAL BELONGINGS
You agree that Fitnesse is in no way responsible for the safe keeping of your personal belongings while you are present in the studio. You assume all risk of loss for any of your personal belongings.
FITNESSE TRAINING CLUB RULES AND REGULATIONS
All classes and membership packages are non-refundable. No exceptions.
All classes must be prepaid.
You must be physically present and checked in at the start of class or your spot may be released to a waitlisted client. No exceptions.
Reserved classes must be changed or canceled within 12 hours of the scheduled time or they will be forfeited.
Membership packages are subject to a penalty fee for a late cancellation or absence.
If recovering from injury or illness, notify the instructor prior to class start time.
COVID-19 & ILLNESS LIMITATION OF LIABILITY
Fitnesse takes COVID-19 and other illnesses very seriously and has put in place preventative measures to help reduce the spread of illnesses; however, Fitnesse cannot guarantee that you, your family, or your guests will not become infected with COVID-19 or other illnesses. It is possible that attending classes, events, and activities at Fitnesse may place you in close physical contact with other members, attendees, and staff and could increase the risk that you, your family members, and your guests contract COVID-19 or other illnesses. You voluntarily assume the risk that you, your family members, and your guests may be exposed to or infected by COVID-19 or other illnesses at Fitnesse studios and that such exposure or infection could result in personal injury, illness, permanent disability, and death. You understand that the risk of becoming exposed to or infected by COVID-19 or other illnesses at Fitnesse may result from the actions, omissions, or negligence of yourself or others, including, but not limited to, Fitnesse employees, members, and attendees.
By agreeing to these Terms, enrolling online, and/or attending classes, events, activities, and other programs of Fitnesse, whether in a Fitnesse facility or using Fitnesse equipment, to the extent allowed by applicable law, you voluntarily agree, on behalf of yourself, your heirs, personal representatives and/or assigns, and any minor child you may enroll: (a) to assume all of the foregoing risks related to COVID-19 or other illnesses, and accept sole responsibility for any COVID-19 or other illnesses related injury, illness, damage, loss, claim, liability, or expense, of any kind (including, but not limited to, personal injury, disability, and death) that may occur to you or your family members in connection with attendance at Fitnesse or as a result of participation in Fitnesse programs (“Claims”); and (b) covenant not to sue, Fitnesse its instructors, clients, and employees, from the Claims, including all liabilities, claims, actions, damages, costs or expenses of any kind arising out of or relating thereto, based on the actions, omissions, or negligence of Fitnesse, its instructors, members, and employees, whether a COVID-19 or other infections occurs before, during, or after attending Fitnesse studio facilities or participating in any Fitnesse program.
LIMITATION OF LIABILITY
By signing your initial “Enlistee” contract and/or attending classes, events, activities, and other programs and using the Fitnesse Training Club facilities and equipment, you hereby acknowledge on behalf of yourself, your heirs, personal representatives and/or assigns, that there are certain inherent risks and dangers in the strenuous nature of the Fitnesse workout program, you hereby acknowledge that you have voluntarily chosen to participate in an intense physical exercise program. You understand that Fitnesse strongly recommends that you consult with my physician prior to commencing any classes. By signing this document, you acknowledge that you have been fully informed of the strenuous nature of this exercise program and the possibility of adverse physiological occurrences including, but not limited to: abnormal blood pressure, fainting, heart attack or death. By signing this document, you assume all risk for your health and well-being, and fully release and hold harmless for any responsibility, cost or damages to Fitnesse LLC, its instructors, members and employees. You hereby acknowledge that you, and any minor* under your care, fully release. * No one under 14 may participate. A minor aged 14-17 may participate with a parent present.
The content on the Fitnesse website, including without limitation, the text, software, scripts, graphics, photos, sounds, music, videos, interactive features and the like (“Content”) and the trademarks, service marks and logos contained therein (“Marks”), are owned by or licensed to Fitnesse, subject to copyright and other intellectual property rights under the law. Content on the website is provided to you as is for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Fitnesse reserves all rights not expressly granted in and to the website and the Content. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the website or services, provided by you to Company are non-confidential and shall become the sole property of Fitnesse.
You agree to not engage in the use, copying, or distribution of any of the Content other than expressly permitted herein. You agree not to circumvent, disable or otherwise interfere with security-related features of the website or features that prevent or restrict use or copying of any Content or enforce limitations on use of the website or the Content therein.
“FITNESSE”, “TEAMFITNESSE”, “FITNESSE TRAINING CLUB”, “FTC” and the “F” icon and other graphics, logos, word marks, and designs are trademarks of Fitnesse in the U.S. Fitnesse’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Fitnesse.
MOBILE SERVICES
The Fitnesse Training Club Services may include certain services that may be available via your mobile phone, including but not limited to (i) the ability to book and/or purchase Fitnesse via your mobile phone, (ii) the ability to receive and reply to Fitnesse messages, (iii) the ability to browse Fitnesse from your mobile phone and (iv) the ability to access certain Fitnesse features through a mobile application you have downloaded and installed on your mobile phone (collectively the “Mobile Services”). We do not charge for these Mobile Services. However, your carrier’s normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Fitnesse and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.
TERMINATION
We may terminate your access to the Site, without cause or notice, which may result in the forfeiture and destruction of all information associated with you. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
THIRD PARTY SITES
Our Site may contain links to third-party sites that are not owned or controlled by Fitnesse LLC.
Fitnesse LLC has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third-party sites or services. We strongly advise you to read the terms and conditions and privacy policy of any third-party site that you visit.
GOVERNING LAW
This Agreement (and any further rules, policies, or guidelines incorporated by reference) shall be governed and construed in accordance with the laws of California, USA, without giving effect to any principles of conflicts of law.
CHANGES TO THIS AGREEMENT
We reserve the right, at our sole discretion, to modify or replace these Terms of Service by posting the updated terms on the Site. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Service.
We encourage you to review this Agreement periodically for changes. If you do not agree to any of this Agreement or any changes to this Agreement, do not use, access or continue to access the Site or discontinue any use of the Site immediately.
ELIGIBILITY
Membership is void where prohibited. This website is intended solely for Users who are 13 years of age or older. Any registration by, use of or access to the website by anyone under 13 is unauthorized, unlicensed and in violation of these Terms of Use. By using Fitnesse Services or the website, you represent and warrant that you are 13 or older and that you agree to abide by all of the terms and conditions of these Terms of Service. Minors between the ages of 13 and 17 may register on our website only with the involvement of a parent or guardian.
TERM
These Terms of Service shall remain in full force and effect while you use the Fitnesse Services or are a Member. You may terminate your membership at any time, for any reason, by following the instructions on the “My Account” page or by contacting your local studio directly via phone or email. Fitnesse may terminate your membership at any time, without warning, if you breach these Terms of Service. Even after membership is terminated, these Terms of Service will remain in effect.
FEES
You acknowledge that Fitnesse charges fees for its services, and Fitnesse reserves the right to change its fees from time to time in its discretion. If Fitnesse terminates your membership because you have breached these Terms of Service, you may not be entitled to a refund of any unused portion of membership or other fees.
PASSWORD
When you sign up for member Services, you will also be asked to choose a password. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another member at any time or to disclose your password to any third party. You agree to notify Fitnesse immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account.
Fitnesse On-demand Terms
User Accounts
Your account on our Service (your “User Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of User Accounts for different types of Users. If you open a User Account on behalf of a company, organization, or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to our Service with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s User Account without permission. When creating your User Account, you must provide accurate and complete profile information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your User Account, and you must keep your User Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your User Account. You must notify us immediately of any breach of security or unauthorized use of your User Account. We will not be liable for any losses caused by any unauthorized use of your User Account.
You may control certain aspects of your User profile and how you interact with our Service by changing the settings in your settings page. By providing us with your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other promotional messages, such as changes to features of our Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences by contacting F support at info@teamfitnesse.com or by clicking the unsubscribe link within each promotional message. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers; however opting out will not prevent you from receiving Service-related notices.
You acknowledge that you do not own the User Account you use to access our Service. Notwithstanding anything in this Agreement to the contrary, you agree that we have the absolute right to manage, regulate, control, modify and/or eliminate any data stored by us or on our behalf on our (including by our third party hosting providers’) servers as we see fit in our sole discretion, in any general or specific case, and that we will have no liability to you based on our exercise of such right. All data on our servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, USER ACCOUNT HISTORY AND USER ACCOUNT CONTENT RESIDING ON OUR SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN OUR DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. WE DO NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON OUR SERVERS.
FItnesse Training on demand Terms
User Data
As part of our Service, we will collect data, content and information, including video, audio and personal information, that you provide to us or that is collected by us or via the Service, including without limitation Workout Data as described in our Privacy Policy (“User Data”). You hereby grant to us, and represent and warrant that you have all rights necessary to grant to us, a perpetual, irrevocable, non-exclusive, sublicensable, transferable and royalty-free right and license to collect, use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and to modify and make derivative works of any and all User Data in order to provide and maintain our Service for you and, solely in anonymous or aggregate form, to improve our products and services and for our other business purposes (and any and all such derived data is deemed part of our Intellectual Property). In connection with your User Data, you affirm, represent and warrant that: (a) you have the written consent of each and every identifiable natural person in the your User Data regarding such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (b) your User Data and our use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We take no responsibility and assume no liability for any of your User Data. You shall be solely responsible and indemnify us for your User Data.
Changes to our Service
We may, without prior notice, change our Service; stop providing our Service or features of our Service, to you or to Users generally; or create usage limits for our Service. We may permanently or temporarily terminate or suspend your access to our Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Interactions with Other Users
You are solely responsible for your interactions with other Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. We shall have no liability for your interactions with other Users, or for any User’s action or inaction.
Firmware License
Subject to your compliance with this Agreement, Fitnesse grants you a limited non-exclusive, non-transferable, non-sublicensable license to use related hardware (“Fitnesse products and apparel”), for your own personal, non-commercial purposes and for no other purposes. You may not (i) copy, modify or create derivative works based on Fitnesse products and apparel; (ii) distribute, transfer, sublicense, lease, lend or rent Fitnesse products and apparel to any third party; (iii) reverse engineer, decompile or disassemble Fitnesse products; or (iv) make the functionality of Fitnesse products and apparel available to multiple users through any means. While you are expressly prohibited from commercially reselling Fitnesse products and apparel, you may give Fitnesse products and apparel as a gift, and, for the avoidance of doubt, this Agreement applies to any gift recipient. You are responsible for ensuring that the gift recipient receives these terms. Fitnesse reserves all rights in and to Fitnesse products and apparel not expressly granted to you under this Agreement. All products are protected by U.S. copyright law and international treaties. Third-party code incorporated in Fitnesse applications, websites, or software may be covered by an applicable open source or third-party license licenses authorizing use of such code, and by using the Fitnesse site, application, and products, you agree to be bound by the terms thereof. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. All Firmware and any related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202.
Service Location
Our Service is controlled and operated from facilities in the United States. Those who access or use our Service from other jurisdictions are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use our Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
Our Intellectual Property
You acknowledge and agree that our Service and all materials and content displayed or made available on our Service, and all software, algorithms, code, technology and intellectual property underlying and included in or with our Service, and all intellectual property rights therein and thereto throughout the world (collectively and individually, our “Intellectual Property”), are our (or our licensors’ as applicable) sole and exclusive property. Except as explicitly provided herein, nothing in this Agreement will be deemed to create a license in or under any intellectual property rights, and you agree not to access, sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any of our Intellectual Property. Use of our Intellectual Property for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to, or we may invite you to submit, comments or ideas about our Service, including without limitation about how to improve our Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place us under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, we do not waive any rights to use similar or related ideas previously known to us, or developed by our employees, or obtained from sources other than you.
Your Content
Some areas of the Service allow you to post content such as profile information, comments, questions, and other content or information (“your Content”). We claim no ownership rights over your Content. Your Content remains yours; however, by sharing your Content through the Service, you agree to allow others to view, edit, and/or share your Content in accordance with your settings and this Agreement. We have the right (but not the obligation) in our sole discretion to remove any of your Content that is shared via the Service.
You agree that your Content will not include any content or materials that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that your Content does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy. We reserve the right, but we are not obligated, to reject and/or remove any of your Content that we believe, in our sole discretion, violates these provisions. You understand that publishing your Content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer’s Guild of America, or any other rights organization.
In connection with your Content, you affirm, represent and warrant that: (a) you have the written consent of each and every identifiable natural person in the your Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use; (b) your Content and our use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights; (c) we may exercise the rights to your Content granted under this Agreement without liability for payment of any guild fees, residuals, payments, fees, or royalties payable under any collective bargaining agreement or otherwise; and (d) to the best of your knowledge, all of your Content and other information that you provide to us is truthful and accurate.
We take no responsibility and assume no liability for any of your Content. You shall be solely responsible for your Content and the consequences of posting or publishing it. You understand and agree that you may be exposed to your Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that we shall not be liable for any damages you allege to incur as a result of your Content.
Additional Terms for Mobile Applications
Mobile Applications We may make available software to access our Service via a mobile device (“Mobile Applications”). To use any Mobile Applications, you must have a mobile device that is compatible with the Mobile Applications. We do not warrant that the Mobile Applications will be compatible with your mobile device. You may use mobile data in connection with the Mobile Applications and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges. We grant you a non-exclusive, non-transferable, revocable license to use a compiled code copy of the Mobile Applications for one User Account on one or more mobile devices owned or leased solely by you, solely for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Mobile Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Applications to any third party or use the Mobile Applications to provide time sharing or similar services for any third party; (iii) make any copies of the Mobile Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Applications, features that prevent or restrict use or copying of any content accessible through the Mobile Applications, or features that enforce limitations on use of the Mobile Applications; or (v) delete the copyright and other proprietary rights notices on the Mobile Applications. You acknowledge that we may from time to time issue upgraded versions of the Mobile Applications, and may automatically electronically upgrade the version of the Mobile Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Any third-party code that may be incorporated in the Mobile Applications is covered by the applicable open source or third-party license EULA, if any, authorizing use of such code. The foregoing license grant is not a sale of the Mobile Applications or any copy thereof. We or our third-party partners or suppliers retain all right, title, and interest in the Mobile Applications (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. We reserve all rights not expressly granted under this Agreement. If the Mobile Applications is being acquired on behalf of the United States Government, then the following provision applies. The Mobile Applications will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display or disclosure of our Service and any accompanying documentation by the U.S. Government will be governed solely by these Terms of Service and is prohibited except to the extent expressly permitted by these Terms of Service. The Mobile Applications originates in the United States, and is subject to United States export laws and regulations. The Mobile Applications may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Mobile Applications may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the Mobile Applications and our Service.
Mobile Applications from Apple App Store The following applies to any Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Fitnesse, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to us as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to us as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Fitnesse, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and we acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
Mobile Applications from Google Play Store The following applies to any Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that the Agreement is between you and Fitnesse only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Fitnesse, and not Google, is solely responsible for our Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Google-Sourced Software.
In addition you hereby acknowledge and agree to the following warnings, instructions, and disclaimers:
We do not guarantee that the Fitnesse application or its functionality or content is accurate, reliable, always available, or complete. You may encounter content through the Fitnesse application that you find offensive, indecent, or objectionable. Fitnesse has no responsibility or liability for such content. We have endeavored to be as accurate as possible in describing and displaying the features of the Fitnesse application and other Fitnesse-branded content; however, there is no warranty or guarantee that the quality, product descriptions, or other content of the Service is accurate, complete, reliable, current, or error-free.
Your use of any third party services or products in connection with your use of any Fitnesse products or applications is subject to this Agreement and any third party terms applicable to such third party services or products. When using any third party services or products you are responsible for any information you provide to the third party. Your use of third party services or products may incur usage and/or data charges, you are responsible for any such charges. Fitnesse has no responsibility or liability for any third party services or products.
You acknowledge that you are solely responsible for obtaining any access to the Internet through a cellular data service provider or a wireless service provider or other Internet connectivity service provider whose service is compatible with the Fitnesse application.
Charges and Payment
Billing Policies By using the Service, you agree to our pricing and payment terms as we may update them from time to time. Unless otherwise specified at the time of purchase, you must pay for your Fitnesse products, services, and apparel when you place your order. You acknowledge that the amount billed may vary due to changes in applicable fees, promotional offers and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
Subscription Plans You agree to make payments, and we will automatically charge the payment method associated with your User Account (“Payment Method”), as described below for so long as your User Account remains active. We may offer plans that you can sign up for that allow you to use certain aspects of the Service (a “Subscription Plan”). Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in additional fees, as specified in the plan. Subscription Plans may be offered for a fee or other charge for a set period of time of Service use (e.g., monthly, or annually) (a “Subscription
Period”). If you elect to use a paid Subscription Plan, you agree to the pricing and payment terms specified at checkout and herein, as we may update them from time to time. We may change Subscription Plans by offering new services for additional fees and charges and adding or amending fees and charges for existing Subscription Plans/services, at any time in its sole discretion. Any change to a Subscription Plan’s pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in these Terms. All Subscription Plans will automatically renew until cancelled by you. If you do not want a Subscription Plan to renew, please cancel it at least three days before the end of the Subscription Period. If we terminate your Subscription Plan, we will grant you a prorated refund for the remaining unused portion of your
Subscription Period. You are not entitled to a refund for any Subscription Plan that you cancel.
Payment Information; Taxes You must provide Fitnesse with a current, valid, accepted Payment Method. You hereby authorize Fitnesse (through our third-party payment providers) to bill the fees to your Payment Method, along with any applicable taxes or additional fees due during the billing period. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with our Service must be accurate, complete, and current. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Third-Party Payment Provider We use Stripe as our third party service provider for payment services. By using our Service you agree to be bound by Stripe’s Services Agreement available at stripe.
Fitnesse Product terms
Shipping All products ordered will be delivered to the shipping address you provide. If Fitnesse provides an expected shipping date, such date is an estimate and subject to change. Fitnesse shall not be liable for any change in such expected shipping date. You will be notified via email if there is an issue that will delay your delivery beyond the expected delivery date. Your billing and shipping addresses may be different. We will arrange for packing and shipment of the Fitnesse products and apparel to you; provided that we may charge you if you change your shipping address after ordering the Fitnesse products and apparel. Scheduled shipping and delivery dates are estimates only and cannot be guaranteed. We will make commercially reasonable efforts to ship the Fitnesse products and apparel to you by the scheduled delivery dates, but we are not liable, under any circumstances, for any losses, damages or penalties due to any delays in shipments or deliveries.
Returns You may request to return your Fitnesse products and apparel to Fitnesse at no charge for a full refund of the amount you paid for the Fitnesse products and apparel, minus any shipping or delivery fees, at any time within thirty (30) days of receiving your delivery (or any such longer period as required by applicable law or offered by Fitnesse at the time of sale, the “Return Period”).
This money-back guarantee does not cover dissatisfaction caused by ordinary wear and tear or damage caused by improper use or accidents, subject to the terms of our Limited Warranty. Damage to the Fitnesse products and apparel upon receipt of delivery must be notated upon delivery. Please thoroughly inspect your products and apparel and report any damage within 48 hours to the delivery company and Fitnesse support at info@teamfitnesse.com.
Cancellations You may request to cancel your Fitnesse order for a full refund at any time before the item is shipped or delivered.
Per the terms of the Limited Warranty, if a defect arises in your Fitnesse products and/or apparel or a warranted component within the applicable Limited Warranty period, your sole and exclusive remedy is for Fitnesse to, at Fitnesse’ discretion to the extent permitted by law, either replace or repair the defective or malfunctioning Fitnesse products and apparel or component with the same or a comparable model or, if agreed by the parties, Fitnesse may provide a credit in such amount toward your purchase of a new Fitnesse products and apparel. Any replacement or repaired component shall be warranted for the remainder of the original Limited Warranty period or 30 days, whichever is longer, or for any additional period that is required by applicable law.
Returning Your Device Fitnesse will offer at no charge packaging and shipping for your return in the event you return your Fitnesse products and apparel due to a defect; for all other returns, you are responsible for paying for all associated packing and shipping costs.
Your Fitnesse products and apparel are expected to be returned in the same condition that it was received. If there are missing accessories or damage to the equipment that was not noted upon receipt, a fee will be associated for refurbishment and repair that will be deducted from your purchase price prior to refund.
To request a return or report a defect, please email our customer service department at info@teamfitnesse.com and provide your name, contact information, order number, and name(s) of the specific item(s) that is/are defective or malfunctioning. Nothing in this Return Policy will reduce or otherwise affect your statutory rights in relation to Fitnesse’ products and apparel.
Instructions; Restrictions; Warnings; Disclaimers
Please carefully read any and all instructions that come with Fitnesse products and apparel, including instructions that may be available online on our website or by contacting Fitnesse support at info@teamfitnesse.com. You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for any or all of the following activities:
WARNING: MISHANDLING FITNESSE PRODUCTS MAY RESULT IN SERIOUS INJURY OR IMPARIED FUNCTIONALITY. Do not use Fitnesse products on uneven or rough surfaces. Supervise children and domestic animals around the Fitnesse products.
WARNING: Fitnesse products may contain BPA, a chemical known by the state of California to cause cancer, birth defects or other reproductive harm. For more information, visit bisphenol-bpa.
WARNING: DO NOT PERFORM YOUR OWN REPAIRS ON FITNESSE PRODUCTS. If your Fitnesse products require repairs or replacement, please contact customer service at info@teamfitnesse.com.
WARNING: DO NOT EXPOSE FITNESSE PRODUCTS TO EXTREME HEAT OR MOISTURE.
WARNING: READ THE USER MANUAL PRIOR TO USE AND FOLLOW ALL WARNINGS AND INSTRUCTIONS.
WARNING: SET UP AND OPERATE ON A SOLID, LEVEL SURFACE.
WARNING: DO NOT USE FITNESSE PRODUCTS FOR ANYTHING OTHER THAN ITS INTENDED PURPOSE.
ADDITIONAL terms
No Professional Advice
If the Service provides professional information (for example, medical), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.
Privacy
We care about the privacy of our Users. You understand that by using our Service you consent to the collection, use and disclosure of your personal information and aggregate and/or anonymized data as set forth in our Privacy Policy available at (insert privacy policy page), and to have your personal information collected, used, transferred to and processed in the United States.
Security
Please carefully read any and all instructions that come with your Fitnesse products and apparel, including instructions that may be available online on our website or by contacting Fitnesse support at info@teamfitnesse.com. You understand and agree that you assume all risk and liability, and we have no obligation or liability whatsoever to you or anyone else for any or all of the following activities:We care about the integrity and security of your personal information. We use physical, managerial, and technical safeguards in its sole discretion to preserve the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Disclaimer of Third-Party Links and Products
THE SERVICE MAY CONTAIN THIRD-PARTY MATERIALS OR LINKS TO THIRD-PARTY MATERIALS THAT ARE NOT OWNED OR CONTROLLED BY FITNESSE. FITNESSE DOES NOT ENDORSE OR ASSUME ANY RESPONSIBILITY FOR ANY SUCH THIRD-PARTY SITES, INFORMATION, MATERIALS, PRODUCTS, OR SERVICES. IF YOU ACCESS A THIRD-PARTY WEBSITE OR SERVICE FROM THE SERVICE OR SHARE YOUR USER CONTENT ON OR THROUGH ANY THIRD-PARTY WEBSITE OR SERVICE, YOU DO SO AT YOUR OWN RISK, AND YOU UNDERSTAND THAT THIS AGREEMENT AND FITNESSE’ PRIVACY POLICY DO NOT APPLY TO YOUR USE OF SUCH SITES. YOU EXPRESSLY RELIEVE FITNESSE FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE, SERVICE, OR CONTENT, INCLUDING WITHOUT LIMITATION THIRD-PARTY MATERIALS AND USER CONTENT SUBMITTED BY OTHER USERS. ADDITIONALLY, YOUR DEALINGS WITH OR PARTICIPATION IN PROMOTIONS OF ADVERTISERS FOUND ON THE SERVICE, INCLUDING PAYMENT AND DELIVERY OF GOODS, AND ANY OTHER TERMS (SUCH AS WARRANTIES) ARE SOLELY BETWEEN YOU AND SUCH ADVERTISERS. YOU AGREE THAT FITNESSE SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE OF ANY SORT RELATING TO YOUR DEALINGS WITH SUCH ADVERTISERS.
Indemnity
You agree to defend, indemnify and hold harmless Fitnesse and our subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to our Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (iv) your violation of any applicable law, rule or regulation; (v) User Data including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of our Service with your unique username, password or other appropriate security code.
No Warranty
OUR SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF OUR SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FITNESSE OR THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, FITNESSE, OUR SUBSIDIARIES, OUR AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS; THAT OUR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT OUR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF OUR SERVICE.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FITNESSE, OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, OUR SERVICE. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF OUR SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH OUR SERVICE; AND/OR (VII) YOUR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL FITNESSE, OR OUR AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS, BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO FITNESSE HEREUNDER OR $100.00, WHICHEVER IS GREATER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
Governing Law, Arbitration, and Class Action/Jury Trial Waiver
Governing Law. You agree that: (i) our Service shall be deemed solely based in California; and (ii) our Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. This Agreement shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Arbitration READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with Fitnesse, you agree to first contact us at info@teamfitnesse.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute we have with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and we agree otherwise. If you are using our Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using our Service for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. NOTHING IN THIS SECTION SHALL BE DEEMED AS PREVENTING US FROM SEEKING INJUNCTIVE OR OTHER EQUITABLE RELIEF FROM THE COURTS AS NECESSARY TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF OUR DATA SECURITY, INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS.
Class Action/Jury Trial Waiver WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED OUR SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
Assignment This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior express written consent, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Notification Procedures and Changes to the Agreement We may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as we determine in our sole discretion. We reserve the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain notifications as required under applicable laws or as described in this Agreement or our Privacy Policy. We are not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We may, in our sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of our Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any part of this Agreement or any future Terms of Service, do not use or access (or continue to access) our Service.
Entire Agreement/Severability This Agreement, together with any amendments and any additional agreements you may enter into with us in connection with our Service, shall constitute the entire agreement between you and us concerning our Service. None of our employees or representatives are authorized to make any modification or addition to this Agreement. Any statements or comments made between you and any of our employees or representatives are expressly excluded from this Agreement and will not apply to you or us or your use of our Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
No Waiver No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Contact Please contact us at info@teamfitnesse.com with any questions regarding this Agreement.
California Residents The provider of our Service is Fitnesse Inc. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.