PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING THE FIND YOUR TRAINER APPLICATIONS OR ANY SERVICES PROVIDED BY US, YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT ACCESS OR USE THE FIND YOUR TRAINER WEBSITE, APPLICATION OR ANY SERVICES PROVIDED BY US.
FYT may modify this Agreement's terms and conditions at any time without notice. Continued use of the Services and the FYT Site after a change in this Agreement, or after implementation of any other new policy constitutes acceptance of such change or policy. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR ANY REVISED VERSION OF THIS AGREEMENT, PLEASE DO NOT USE THIS SITE.
1. WHAT WE DO
FYT provides the Services to USER for the purpose of assisting USER in scheduling and purchasing personal training sessions with participating third party fitness clubs and personal trainers (each a "Trainer"). In response to a USER's online request, the FYT Site directly contacts the Trainer. The availability of sessions is determined at the time of USER's query. Once a session is made by USER, FYT will provide confirmation of the session to USER by email. By using the Services, USER agrees to receive session confirmations by email after booking a session through the FYT Site.
2. NO SHOW POLICY
FYT is committed to providing superior quality services to its USERS and Trainers. To assist us in maintaining a consistently high level of service with the participating fitness clubs and trainers, USERS are asked to cancel or reschedule online any session that they will be unable to honor at least 24 hours in advance of the start time of the original session in order to receive a credit for the full value of your original session. If you are unable to keep your session and you fail to cancel, you will forfeit the full value of your session and no credit will be given.
FYT credits are not redeemable for cash or cash equivalents, are non-transferable and may not be applied towards prior purchases. Other restrictions may apply. Unless you paid us in full for any credits, we reserve the right to rescind any credits subject to reasonable notice to you.
4. DEVICE USAGE TERMS AND CONDITIONS
You acknowledge and agree that your use of the FYT Site must also be in accordance with the usage rules established by your mobile device platform or service provider.
5. REGISTRATION DATA; ELIGIBILITY
To access certain areas and features of the Services, you may be required to register with FYT. If you register, you will (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms made available via the Services (the "Registration Data"); (ii) maintain and promptly update the Registration Data, and any other information you provide to FYT, in order to keep it accurate, current and complete; and (iii) accept all risk of unauthorized access to the Registration Data and any other information you provide to FYT.
FYT is under no obligation to retain a record of your account or any data or information that you may have stored by means of your account or your use of the Services. You are only authorized to create and use one account for the Services and are prohibited from using alter egos or other disguised identities when using the Services. You are under no obligation to use or continue to use the Services and may stop using the Services without notice to FYT.
You may not use the Services if you are under 18 years of age (or the age of majority in your jurisdiction).
6. USAGE GUIDELINES
Any and all other uses which are unlawful or in violation of this Agreement's terms and conditions are prohibited. FYT reserves the right, in its sole discretion, to refuse service, terminate accounts, remove or edit content, or cancel sessions.
7. EMAIL POLICY
You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that these communications be in writing.
8. INTELLECTUAL PROPERTY AND GRANT OF RIGHTS TO USER
The materials and services provided for and depicted on the FYT Site are protected by copyright, trademark, patent and other intellectual property laws. All text, graphics, video, data, software or other content on the FYT Site ("FYT Content") is provided to USER by FYT for the sole purpose of using the Services. USER shall not copy, display, modify, create derivative works of, publish, rent, lease, redistribute, sublicense, sell, decompile or reverse-engineer the FYT Content or any information, software, or services provided by FYT hereunder. The FYT Content may be modified from time to time by FYT in its sole discretion. Except as expressly set forth herein, no license is granted to USER for any other purpose, and any other use of the Services or the FYT Content by USER shall constitute a material breach of this Agreement. Nothing in this Agreement shall affect any rights of FYT or its licensors in the Services or FYT Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets or other intellectual property rights. No license, right or interest in any trademarks of FYT or any third party is granted under this Agreement. Nothing in this Agreement shall affect any rights of FYT or its licensors in the Services or FYT Content, and any associated patents, trademarks, copyrights, mask work rights, trade secrets or other intellectual property rights. No license, right or interest in any trademarks of FYT or any third party is granted under this Agreement. If you violate any of the foregoing restrictions, your right to use of the Services will immediately cease, and you will have infringed the copyright and other rights of FYT, which may subject you to prosecution and damages. FYT reserves all rights not expressly granted to you in these Terms.
9. CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS
In exchange for FYT providing you with access to the Services, you consent to FYT collecting and using technical data, personal information and related information in connection with your use of the Services, including, but not limited to, contact information and technical information about your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Services and of software updates, product support and other services. You also consent to our communicating with you about the Services.
10. PRODUCT DESCRIPTIONS
FYT attempts to be as accurate as possible. If you have reason to believe that a session you purchased through the Services does not meet the claims advertised within the Services, you must contact FYT immediately (and in any case no later than three business days following the session date). Your failure to contact us within in this period may affect our ability to investigate and resolve your claim.
11. ADVERTISED PRICES
FYT makes no guarantee that the prices advertised through the Services represent (i) the lowest price for a session in every area on any particular day or (ii) the published price for a session on another website or publication not affiliated with FYT in every area on any particular day.
12. PURCHASING SESSIONS FROM FYT
When you purchase a session using the Services, you are representing the following: (i) any credit information you supply is true and complete; (ii) charges incurred by you will be honored by your credit card company and (iii) you will pay the posted price for the session, even if you are unable to attend that session. Posted session rates include applicable taxes. You are responsible for paying the fitness club or trainer directly for any additional services or charges you incur once you are at the session.
13. USER CONTENT AND YOUR CONDUCT
The Services includes forums and other interactive areas or services (“Interactive Areas”) in which you or other users can create, post or share content, ratings, reviews, materials, data, information, text, photos and/or other materials (“User Content”). You are solely responsible for your use of such Interactive Areas and the User Content you share. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
- User Content that is libelous, defamatory, profane, obscene, pornographic, sexually explicit, indecent, lewd, vulgar, suggestive, violent, harassing, hateful, threatening, offensive, discriminatory, bigoted, abusive, inflammatory, fraudulent, deceptive or otherwise objectionable;
- User Content that is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or that would otherwise create liability or violate any local, state, provincial, national or international law;
- User Content that may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual property right, or any other right, of any party;
- Unsolicited promotions, political campaigning or commercial messages (SPAM), or any chain messages or User Content designed to deceive or trick a user of the Service;
- Private information of any third party including, but not limited to, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers; and
- Viruses, corrupted data or other harmful, disruptive or destructive files or code, script or other software designed to automate any functionality on the Service without FYT's express written consent.
You further agree that you are solely responsible for your conduct while using the Services and that you will not do any of the following in connection with the Services or its users:
- Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Services or that could damage, disable, overburden or impair the functioning of the Services in any manner;
- Collect any personally identifiable information about other users (except as specifically authorized by FYT), or intimidate, threaten, stalk or otherwise harass or cause discomfort to other users of the Services;
- Use the Services for any commercial purpose;
- Use the Services for any illegal or unauthorized purpose or engage in, encourage or promote any illegal activity or any activity that violates these Terms or any other rules or polices established from time-to-time by FYT;
- Create an account, post any content, or otherwise use the Services if you are not at least 18 years of age;
- Modify, adapt, hack or emulate the Services;
- Circumvent or attempt to circumvent any filtering, security measures or other features designed to protect the Services or users of the Services or third- parties; and
- Infringe upon or violate the rights of FYT, our users or any third party.
FYT takes no responsibility and assumes no liability for any user conduct or for any User Content posted, stored or made available via the Services. FYT will not be liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter through the Services. Your use of the Services, including any Interactive Areas, is at your own risk. Enforcement of the user content and conduct rules set forth in these Terms is solely at FYT's discretion, and failure to enforce such rules in some instances does not constitute a waiver of our right to enforce such rules in other instances. In addition, these rules do not create any private right of action on the part of any third party or any reasonable expectation that the Service will not contain any content that is prohibited by these rules.
If you do submit material, and unless we indicate otherwise, you grant FYT a nonexclusive, perpetual, royalty-free, irrevocable, and fully sublicensable right to use, modify, reproduce, adapt, translate, publish, create derivative works from, distribute, and display such content throughout the world in any media. You represent and warrant that you own or otherwise control all of the rights to the content that you submit; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify FYT for all claims resulting from content you supply. FYT has the right but not the obligation to monitor and edit or remove any activity or content, including but not limited to content that violates the standards of this website, as determined by FYT in its sole discretion.
14. THIRD-PARTY INTERACTIONS
Your use of the Services and your contact, interaction or dealings with any third parties arising out of your use of the Services is solely at your own risk. The fitness clubs, trainers and other suppliers of FYT are independent contractors and not agents or employees of FYT. FYT is not responsible for, and will not be held liable for, the acts, errors, omissions, representations, warranties, breaches or negligence of any of these fitness clubs, trainers or other suppliers for any personal injuries, death, property damage, loss, theft or other damages or expenses resulting therefrom.
15. ACCESS AND INTERFERENCE
Much of the information on the FYT Site is updated on a real time basis and is proprietary or licensed to FYT by its trainers, fitness clubs or third parties. By using the FYT Site, you agree not to:
- Use any robot, spider, scraper or other automatic device, process or means to access the FYT Site for any purpose without FYT’s express written permission.
- Take any action that imposes or may impose (in FYT’s sole discretion) an unreasonable or disproportionately large load on our infrastructure.
- Implement any manual processes to monitor or copy FYT Content from the FYT Site without express written permission.
- Utilize any device, software or routine that will interfere or attempt to interfere with the functionality of the FYT Site.
16. TERMINATION OR MODIFICATION OF APPLICATION
FYT reserves the right to change, suspend, remove, discontinue or disable access to the Services (including, but not limited to, the FYT Site) at any time without notice. In no event will FYT be liable for the removal of or disabling of access to any portion or feature of the Services (including, but not limited to, the FYT Site).
If you breach any of the terms or conditions of this Agreement or FYT discontinues the FYT Site, these Terms will automatically terminate. In the event of the termination of this Agreement for any reason, the license granted to you in this Agreement will immediately terminate and you must immediately stop all use of the Services (including the FYT Site). All of the sections of this Agreement that by their nature should survive termination will survive any termination of this Agreement. For avoidance of doubt, the License section will not survive termination of this Agreement. Any use of the Services after termination is unlicensed and is in violation of the copyright and other rights of FYT. FYT and our affiliates reserve the right to refuse service, terminate accounts, remove or edit content or cancel orders in our sole discretion.
18. UNLAWFUL ACTIVITY
We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators or other third parties, and disclosing any information necessary or appropriate to such persons or entities relating to your Registration Data, usage history, posted materials, IP addresses and traffic information.
19. INFORMATION AND PRESS RELEASES
The FYT Site may contain information and press releases about us. We disclaim any duty or obligation to update this information. Information about companies other than ours contained in any press release or otherwise should not be relied upon as being provided or endorsed by us.
20. LIABILITY LIMITATIONS
IN NO EVENT SHALL FYT BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY USE OF THE SERVICES, THE FYT SITE OR THE FYT CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES OR THE FYT SITE FOR SESSIONS), OR (III) THE PERFORMANCE OR NON-PERFORMANCE OF ANY TRAINER OR FITNESS CLUB IN CONNECTION WITH THE SERVICES. IN ADDITION, ALL USERS SPECIFICALLY UNDERSTAND AND AGREE THAT ANY THIRD PARTY DIRECTING USERS TO THE FYT SITE BY REFERRAL, LINK OR ANY OTHER MEANS IS NOT LIABLE TO USER FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICES, THE FYT SITE OR THE FYT CONTENT. FYT IS NEITHER AN AGENT OF NOR IS CONNECTED WITH ANY AFFILIATED TRAINER OR FITNESS CLUB IN WHICH A USER HAS MADE A SESSION. ASIDE FROM THE SERVICES PROVIDED ON THE FYT SITE. FYT IS NOT LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH A USER’S VISIT TO AN AFFILIATED TRAINER OR FITNESS CLUB.
21. DISCLAIMER OF WARRANTY
THE INFORMATION, PROGRAMS, PRODUCTS, AND MATERIALS CONTAINED IN OR ACCESSED ON THE FYT SITE, INCLUDING, WITHOUT LIMITATION, THE SERVICES AND THE FYT CONTENT, ARE PROVIDED TO USER ON AN 'AS IS' BASIS AND WITHOUT WARRANTY OF ANY KIND. FYT DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, THE FYT SITE, THE FYT CONTENT AND RELATED MATERIALS PROVIDED HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING.
You will defend, indemnify and hold us, our independent contractors, service providers and consultants, and their respective directors, employees and agents, harmless from and against any and all actual or threatened third-party suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to (i) your conduct; (ii) your violation of this Agreement or your violation of the rights of any third party; or (iii) any User Content you share.
23. THIRD-PARTY CONTENT
FYT may provide third-party content via the Services and may provide links to webpages and content of third parties (collectively, “Third-Party Content”) as a service to those interested in this information. FYT does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding Third-Party Content including, but not limited to, its accuracy or completeness. FYT is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content. Users use Third-Party Content at their own risk.
If any of the provisions, or portions thereof, of this Agreement are found to be invalid under any applicable statute or rule of law, then, that provision notwithstanding, this Agreement shall remain in full force and effect and such provision or portion thereof shall be deemed omitted.
25. NO ASSIGNMENT
This Agreement and the rights granted and obligations undertaken hereunder may not be transferred, assigned or delegated in any manner by USER, but may be so transferred, assigned or delegated by FYT.
Any waiver of any provision of this Agreement, or a delay by any party in the enforcement of any right hereunder, shall neither be construed as a continuing waiver nor create an expectation of non-enforcement of that or any other provision or right.
27. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
Any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between you and FYT or FYT's employees, agents, successors, or assigns, shall exclusively be settled through binding and confidential arbitration.
Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and FYT must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR FYT MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, FYT will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (d) FYT also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (e) the arbitrator shall honor claims of privilege and privacy recognized at law; (f) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award; (g) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (h) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law.
Notwithstanding the foregoing, either You or FYT may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in New York, New York. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in New York County, New York in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within New York County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither You nor FYT shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court located in New York County, New York.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
28. CHOICE OF LAW
The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of New York, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.
REVISION DATE: June 1, 2013