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This Agreement constitutes a legal agreement between you ("you" or "User") and FGW Media, Ltd ("Fit Girls", “we”, “our” or "us"). This Agreement governs your use of our services, our content, our websites located at www.fitgirls.com, www.fitgirlsguide.com and www.fitgirlsworldwide.com as they may be modified, relocated and/or redirected from time to time (jointly, the "Site"), our publications, and the mobile application offered by us (the "App"). Our services, content, Site, publication, and App are collectively referred to as the "Fit Girls Platform".
By using the Fit Girls Platform you hereby agree to be bound by the terms and conditions of this Agreement.
Please read this Agreement carefully. If you do not agree to be bound by this Agreement, you will not have any right to use the Fit Girls Platform. Fit Girls’ acceptance is expressly conditioned upon your assent to this Agreement in its entirety. If this Agreement is considered to be an offer by us, acceptance is expressly limited to this Agreement.
By using the Fit Girls Platform, you represent and warrant that: (i) you are at least 18 years old or the legally required age to contract in the jurisdiction in which you reside, whichever is greater, and are otherwise capable of entering into binding contracts; and (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the terms and conditions of this Agreement, and that you will so abide.
To the extent permitted and except where prohibited by applicable law, this Agreement includes:
TABLE OF CONTENTS
1. Use of Fit Girls Electronic Publications
a. The Following terms have the following meaning:
i. Fit Girls Electronic Publications. Fit Girls creates publications and other content including, but not limited to, exercise guides, recipe collections, and fitness tips, in electronic format (“Fit Girls Electronic Publications”). The electronic format includes Portable Document Format (“PDF”), eBooks, and any electronic format now known or hereafter developed. Fit Girls licenses, but does not sell, Fit Girls Electronic Publications through the Fit Girls Platform. Fit Girls generally licenses Fit Girls Electronic Publications for Payment (defined below), but, on occasion, Fit Girls licenses Fit Girls Electronic Publications as part of a Fit Girls promotion.
ii. Authorized User. An “Authorized User” is a natural person who has submitted Payment for a license or who qualifies for a promotion to use a Fit Girls Electronic Publication.
b. License to Fit Girls Electronic Publications. Upon sending a copy of a Fit Girls Electronic Publication to an Authorized User, Fit Girls hereby grants the Authorized User the following rights (the “License”), for personal use only, to:
i. Download one copy of the Fit Girls Electronic Publication onto each of the Authorized User’s personal mobile devices, laptop, or other computer;
ii. Make one back-up copy of the Fit Girls Electronic Publication;
iii. Print one hard copy of the Fit Girls Electronic Publication and print an additional hard copy if the previously printed hard copy is destroyed or otherwise rendered unusable; and
iv. Access and view these electronic or hard copies indefinitely or until the license terminates, whichever occurs first.
An Authorized User’s License to use a Fit Girls Electronic Publication automatically terminates when the Authorized User violates any of the terms of the License. Fit Girls reserves all rights to the Fit Girls Electronic Publications (such as rights under intellectual property law) not expressly granted in the License. For example, the License does not grant a right to: (i) use a Fit Girls Electronic Publication for commercial use in any manner; (ii) distribute a Fit Girls Electronic Publication to any person; (iii) modify a Fit Girls Electronic Publication; or (iv) share a Fit Girls Electronic Publication with or display a Fit Girls Electronic Publication to any person.
d. Fit Girls Rights; Enforcement. Use of a Fit Girls Electronic Publication in violation of this License infringes Fit Girls’ rights, including its intellectual property rights. VIOLATION OF FIT GIRLS’ INTELLECTUAL PROPERTY RIGHTS IN FIT GIRLS ELECTRONIC PUBLICATIONS IS A CRIME and may result in civil and criminal liability. Fit Girls may encrypt, force a password, and stamp license details (including customer name, address, order number, etc.) (“Mark”) on Fit Girls Electronic Publications for the purpose of preventing infringement. Fit Girls’ failure to Mark or to enforce its rights in Fit Girls Electronic Publications is not a waiver of Fit Girls’ rights in Fit Girls Electronic Publications.
2. Order and Payment Information.
a. Payments. If you use the Fit Girls Platform or other means to purchase a License, gift code, or other Fit Girls product or service, payment in full of the price required for the purchase of the product or service (“Payment”) must be received by Fit Girls prior to Fit Girls’ acceptance of an order, unless otherwise agreed by Fit Girls. Fit Girls may need to verify information you provide before Fit Girls accepts an order, and may cancel or limit an order any time after it has been placed. If payment has already been made and your order is cancelled or limited, Fit Girls will refund any payment you made for the Fit Girls product or service that will not be sent due to cancellation or limitation of an order in the same tender as the original purchase. Fit Girls expressly conditions its acceptance of your order on your agreement to this Agreement.
b. Pricing. Fit Girls cannot confirm the price of a product or service until you order. Despite our best efforts, items on the Fit Girls Platform may be mispriced. If the correct price of an item sold by Fit Girls is higher than our stated price, Fit Girls will, at our discretion, either contact you for instructions before sending or cancel your order and notify you of such cancellation.
c. Transmission of Fit Girls Electronic Publications. To receive a Fit Girls product or service, you must provide an email address and other contact information requested during the ordering process. Upon Fit Girls’ acceptance of an order for a Fit Girls Electronic Publication (and if Fit Girls does not cancel or limit the order) or decision to send an Authorized User a promotional version of a Fit Girls Electronic Publication, Fit Girls will send the Fit Girls Electronic Publication to the contact information provided by the Authorized User. If you do not receive the product or service sent by email or other electronic means, first check the spam filter to your electronic inbox. If you still do not find the product or service, promptly contact Fit Girls at https://www.fitgirls.com/pages/contact. Fit Girls will, in its sole discretion, attempt to resend or refund your payment. Please retain your order number to facilitate communications with Fit Girls regarding your order. Fit Girls may, in its sole discretion resend a copy of a Fit Girls Electronic Publication to an Authorized User if the Authorized User’s copies are destroyed or otherwise rendered unrecoverable.
d. Accuracy of Order And Payment Information. When ordering a product or service through the Fit Girls Platform or otherwise, you agree to provide only true, accurate, current, and complete information. You hereby certify that any email account or other electronic communications account you provide to Fit Girls is registered to you. You further certify that you are authorized to use the payment method that you provided and that any payment information you provide is true and accurate. Fit Girls shall have the right to bar your access to, and use of, the Fit Girls Platform if Fit Girls reasonably believes that you have provided untrue, inaccurate, not current, or incomplete information to Fit Girls, or for any other reason Fit Girls, in its sole discretion, deems appropriate. You agree that your placement of an electronic order on the Fit Girls Platform is sufficient to satisfy any applicable statute of frauds, and no further writing is required.
e. Third-Party Payment Processors. Fit Girls will use third-party services to process payment information. Please read the terms and conditions for the payment method you choose. For example, for Pay Pal visit www.paypal.com for Shopify visit www.shopify.com.
f. Pricing; Location. All prices on the Fit Girls Platform are listed in U.S. dollars. Fit Girls’ products and services may be subject to a tax which will be applied to your order total. Fit Girls may reject orders where the stated billing or shipping address is outside the United States.
3. Medical Disclaimer; References.
The general information in the Fit Girls Platform is not intended to diagnose any medical condition or to replace your healthcare professional. Always consult your healthcare professional before beginning any exercise or dietary program and to select appropriate exercises. If you experience any pain or difficulty when doing any exercise described in the Fit Girls Platform, including symptoms of weakness, unsteadiness, light-headedness or dizziness, chest pain or pressure, nausea, or shortness of breath, immediately stop exercising and consult your healthcare professional. You may experience mild soreness after beginning a new exercise. Contact your healthcare professional if the soreness does not improve within 2-3 days after the exercise.
Fit Girls’ descriptions of, or references to, products or services not owned by Fit Girls on, or outside of, the Fit Girls Platform do not imply endorsement of that product or service, or constitute a warranty, by Fit Girls.
4. Text (SMS) Messages and Phone Calls.
a. Non-Marketing / Non-Advertising Text (SMS) Messages and Phone Calls. By providing your phone number and using the Fit Girls Platform, you consent to Fit Girls’ using that number, to the extent permitted by applicable law, to call you and, if such phone number is a mobile number, to send text (SMS) messages to you, to provide Fit Girls products and services. Standard call or message charges or other charges from your phone carrier may apply to calls or text (SMS) messages Fit Girls sends you. You may opt-out of receiving text (SMS) messages from us by replying with the word "STOP" to a text message from us. You acknowledge that opting out of text (SMS) messages may impact your ability to use the Fit Girls Platform.
b. Marketing Text (SMS) Messages. FGW may send information about the Fit Girls Platform and offers via text (SMS) messages (the “Marketing Text Program”).
i. Eligibility. You must be 18 years or older in order to participate in the Marketing Text Program or have the express permission of a parent/guardian (but in any case, you must be at least 13 years old). You also must be a U.S. resident to participate in the Marketing Text Program.
ii. How to Sign Up and Your Consent. By texting any of the following words to 70700:
iii. How to Opt Out. You can unsubscribe at any time from the Marketing Text Program by texting "STOP" to 70700. You may receive a confirmation text (SMS) message in response to your unsubscribe request. Fit Girls reserves the right to remove subscribers from our messaging database at our discretion.
iv. Help. For more information about the Marketing Text Program, email email@example.com or reply “HELP” to 70700.
v. Participating Carriers & Fees. Message and data rates may apply. All charges are billed by, and payable to, your mobile service provider. Fit Girls does not charge you for sending or receiving text (SMS) messages to 70700. Content may not be available on all carriers. Fit Girls is not liable for any delays in the receipt of any SMS messages or for any undelivered messages.
vi. Your Information. Data obtained from you in connection with the Marketing Text Program may include your cell phone number, your carrier's name, the date, time and content of your messages, and other information you provide to us as part of the Marketing Text Program. Fit Girls may use this information to contact you and to provide the services you request from us.
Fit Girls may send you confirmation and other transactional emails regarding the Fit Girls Platform. Fit Girls may also send you emails about products or services that we think might interest you ("Marketing Emails"). You can unsubscribe from Marketing Emails at any time by clicking unsubscribe in Fit Girls’ email communications [or by contacting us as described in Section 23].
6. Personal Information; User Accounts.
b. Account, Password and Security. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any username, password and account provided by you or us for accessing the App. You are solely and fully responsible for all activities that occur using your password or account. Fit Girls has no control over the use of any User's account by the User or third parties and expressly disclaims any liability resulting from such unauthorized use. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you must contact us immediately at https://www.fitgirls.com/pages/contact or as described in Section 23. Nothing in this section shall affect Fit Girls’ rights to limit or terminate the use of the Fit Girls Platform, as provided below in Section 20(b).
c. Proof of Identity. You will provide us with such proof of identity as we may reasonably request from time to time.
7. Links to and Plug-Ins from Other Web Sites or Media.
8. Community Areas.
The Fit Girls Platform may contain blogs, message boards, applications, photograph upload portals, reviews, chat areas, news groups, forums, communities, and/or other message or communication facilities that allow Users to communicate with other Users (collectively, "Community Areas"). All submissions made to Community Areas within the Fit Girls Platform will be public. Fit Girls will not be responsible for any information or materials posted in Community Areas. You may only use such Community Areas to send and receive messages and material that are relevant and proper to the applicable forum and that comply with this Agreement. "Your Content" is defined as any information and materials you provide to us or other Users in connection with your registration for and use of the Fit Girls Platform, including without limitation, information and materials that are posted or transmitted for use in Community Areas. You are solely responsible for Your Content, and Fit Girls is merely a passive conduit for your online distribution and publication of Your Content. You hereby represent and warrant that Your Content; (a) will comply at all times with this Agreement, including but not limited to Section 9 (Prohibited Conduct on the Fit Girls Platform) below; and (b) will not create liability for us or cause us to lose (in whole or in part) the services of Fit Girls’ Internet Service Providers (ISPs), customers, or other partners or suppliers.
You hereby grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute all of Your Content that you posted to Community Areas, including but not limited to all images, videos, musical works and text included in such postings in any and all media, including, without limitation, social media, printed publications, presentations, promotional materials, events and associated marketing materials, videos, or web sites, in connection with and/or as part of our business, including in connection with and/or in any advertising in perpetuity throughout the world as Fit Girls in its sole discretion sees fit without further consent or payment. Fit Girls has all right, title, and interest in any and all results and proceeds from such use of Your Content. Fit Girls has the right to transfer the aforementioned rights to use Your Content to any third party, including, but not limited to, any of its subsidiaries or affiliated companies. Fit Girls may alter, adapt, or edit Your Content and any further material created under this Agreement, and market and exploit it entirely at Fit Girls’ sole discretion. Fit Girls is not obliged to make any use of Your Content or exercise any of the rights granted by this Agreement.
9. Prohibited Conduct on the Fit Girls Platform.
Users shall NOT use the Fit Girls Platform (including but not limited to any Community Areas) to do any of the following:
a. Upload files that contain viruses, Trojans, corrupted files, or any other similar software that may damage the operation of another's computer;
b. Upload files that contain software or other material that violates the intellectual property rights or rights of privacy or publicity of any third party;
c. Use the Fit Girls Platform for any purpose or in any manner that is in violation of local, state, national, or international law;
d. Publish, post, upload, distribute or disseminate any profane, defamatory, false, misleading, fraudulent, threatening, obscene, or unlawful topics, names, materials or information, or any materials, information or content that involve the sale of counterfeit or stolen items;
e. Advertise or offer to sell any goods or services for any commercial purpose or solicit employment or contract work. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or sales of products or services through the Fit Girls Platform without express written permission from us;
f. Use the Fit Girls Platform to collect usernames and/or email addresses of members by electronic or other means without Fit Girls’ express prior written consent;
g. Conduct or forward surveys, contests, pyramid schemes, or chain letters;
h. Impersonate another person or allow any other person or entity to use your identification to post or view comments or otherwise use your account;
i. Post the same note repeatedly (referred to as 'spamming'). Spamming is strictly prohibited;
j. Reverse engineer, disassemble, decompile, translate, modify, adapt, license, sublicense, alter, copy, distribute, hack or interfere with the Fit Girls Platform, its servers or any connected networks, use a robot, spider, manual and/or automatic processes or devices to data-mine, data-crawl, scrape or index the Fit Girls Platform in any manner, or attempt to do any of the foregoing;
k. Use, frame, or utilize framing techniques to enclose any Fit Girls trademark, logo, or other proprietary information (including the images found at the Fit Girls Platform, the content of any text, or the layout/design of any page or form contained on a page) without Fit Girls’ express written consent;
l. Deeplink to the Site without Fit Girls’ express written consent;
m. Register to use the App under different usernames or identities, after Fit Girls has suspended or terminated your use of the Fit Girls Platform;
n. Mirror or archive any part of the Fit Girls Platform or any content or material contained on the Fit Girls Platform without Fit Girls’ written permission.
o. Use the Fit Girls Platform in any other way that, in Fit Girls’ sole discretion is injurious to Fit Girls, third parties, or otherwise objectionable.
10. Special Promotions; Gift Codes.
a. Changes to Promotions. Fit Girls may from time to time provide certain promotional opportunities to Users. All promotions will be run at Fit Girls’ sole discretion, and can be activated, modified or removed at any time by us without advance notification.
b. Gift Codes. Fit Girls E-Gift Cards (“Gift Codes” or “Codes”) are issued and managed by Fit Girls and can be applied in full or in part only to purchases of Fit Girls products and services on the Fit Girls Platform. Codes purchased in the United States may be redeemed for online purchases only in the United States, its territories, and possessions.
You agree that you will comply with all Gift Code terms. Gift Code(s) must be presented at the time of purchase and available balance will be applied to your purchase. If Gift Code holder's purchase exceeds the amount of that Gift Code's balance, the Gift Code holder must pay the difference by another means.
Codes are not subject to fees or expiration dates unless otherwise specified in connection with certain promotional or charitable Codes. Purchases of Gift Codes are final, and Codes are nonrefundable. Codes are not redeemable for cash and cannot be returned for a cash refund (except as required by law), exchanged, or resold. Codes may not be combined with any other promotion or offer, used for previous purchases, credits, or the purchase of gift codes or gift cards. No credit card, credit line, overdraft protection, or deposit account is associated with your Gift Code. Unused balances are not transferable. Gift Codes have no cash value and are not redeemable for cash except where required by law.
Fit Girls is not responsible for lost or stolen Codes. Risk of loss and title for Codes passes to the purchaser upon transfer or electronic transmission to the recipient. For avoidance of doubt, such recipient may not always be you. A Gift Code is void if fraudulently copied, altered, transferred, purchased, or sold. Fit Girls reserves the right to limit quantities of Gift Codes purchased by any person or entity and to cancel a Gift Code if we believe that the Gift Code was obtained through fraudulent or unauthorized means. Fit Girls reserves the right to close accounts and/or request alternative forms of payment if a Code is fraudulently obtained or used.
Unused Gift Code balances are not transferable. Fit Girls reserves the right to correct the balance of a Gift Code if we believe that a billing error has occurred, and we disclaim all liability for any such billing errors.
Purchase, redemption, and use of Codes are subject to this Agreement and other Fit Girls terms or policies in effect at the time, as applicable, and use of the Gift Code constitutes acceptance thereof. Fit Girls or our service providers may disclose to the purchaser of a Code whether or not the recipient has redeemed the Code. Applicable terms and conditions are subject to change without notice. If the laws pertaining to this Gift Code require additional or different terms or conditions, then such terms and conditions shall apply. For questions or additional information, contact us at https://www.fitgirls.com/pages/contact or as described in Section 23.
c. Coupon codes. Each coupon is identified by a Coupon Code that has different requirements and different expiration dates. Limit of one coupon per household. Coupons are intended for single use only. Coupons are applicable to Visa, MasterCard, American Express or Pay Pal purchases only for non-sale items. Certain items may not be eligible for discount including but not limited to non-sale items and new items which, by law, cannot be sold at a discount in certain countries. A coupon cannot be used to pay for taxes, shipping and handling or other charges. Other restrictions and exclusions may apply. Coupons are void where prohibited.
11. Intellectual Property Rights.
The Fit Girls Platform, and the information, data, content, and materials, which it contains, including the Fit Girls Electronic Publications ("Fit Girls Materials"), are the property of Fit Girls and/or its affiliates and licensors, excluding Your Content, which Fit Girls has a right to use as described in Section 8 above. The Fit Girls Materials are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions, and other intellectual property laws. Fit Girls and/or its affiliates and licensors are and shall continue to be the sole and exclusive owner of all right, title and interest in and to all intellectual property rights associated with the Fit Girls Materials. Any use of Fit Girls Materials, other than as expressly permitted herein, is prohibited without the prior permission of Fit Girls and/or the relevant right holder. The service marks and trademarks of Fit Girls, including without limitation FIT GIRLS WORLDWIDE and FIT GIRL’S GUIDE are owned by Fit Girls. Any other trademarks, service marks, logos and/or trade names appearing on the Fit Girls Platform are the property of their respective owners. You may not copy or use any of the marks, logos or trade names appearing on the Fit Girls Platform without the express prior written consent of the owner.
12. Copyright Complaints and Copyright Agent.
Fit Girls respects the intellectual property of others, and expects Users to do the same. Fit Girls will respond to properly submitted notices of alleged copyright infringement that comply with applicable law. In the event that a person or entity has a good faith belief that any materials provided on the Fit Girls Platform infringe upon that person’s or entity's copyright or other intellectual property right (such person or entity, a "Complainant") and sends to Fit Girls a properly submitted copyright notice as indicated below, Fit Girls will investigate, and if it determines, in its discretion, that the material is infringing, Fit Girls will remove the content and may terminate the access of the User who posted such content to the Fit Girls Platform in the case of repeat infringers. All notices claiming an infringement of copyright rights must contain the following:
(a) Identification of the intellectual property right that is allegedly infringed. All relevant registration numbers, or a statement concerning the Complainant's ownership of the work, should be included;
(b) A statement specifically identifying the location of the infringing material, with enough detail that Fit Girls may find it on the Fit Girls Platform. Please note: it is not sufficient to merely provide a top level URL;
(c) The complete name, address, telephone number and e-mail address of Complainant;
(d) A statement that Complainant has a good faith belief that the use of the allegedly infringing material is not authorized by the owner of the rights, or its agents, or by law;
(e) A statement that the information contained in the notification is accurate, and under the penalty of perjury, Complainant is authorized to act on behalf of the owner of the copyright or other property rights that are allegedly infringed; and
(f) A physical or electronic signature of a person authorized to act on behalf of the owner of the intellectual property rights that are allegedly being infringed.
Fit Girls’ contact information for notice of alleged copyright infringement is described in Section 23.
13. The App / Mobile Devices
a. The Fit Girls Platform may allow you to access our services, download our Apps, upload content to the Fit Girls Platform, and receive messages on your mobile device (collectively “Mobile Features”). Your mobile device carrier may prohibit or restrict certain Mobile Features and certain Mobile Features may be incompatible with your mobile device carrier or mobile device. In addition, your mobile device carrier may charge you for standard messaging, data, and other fees to participate in Mobile Features. We have no responsibility or liability for any fees or charges you incur when using the Mobile Features. You should check with your mobile device carrier to find out whether any fees or charges will apply, what plans are available and how much they cost. You should also contact your mobile device carrier with any other questions regarding these issues.
b. You acknowledge that your use of the Apps is subject to any terms set forth in the terms of service of the third party providing the mobile device on which the App operates (e.g., Apple iOS).
c. Fit Girls is not liable if you do not have a compatible mobile device or if you download the wrong version of an App for your mobile device. Fit Girls reserves the right to terminate your use of the Apps or any other aspect of the Fit Girls Platform should you be using the Apps or the Fit Girls Platform with an incompatible or unauthorized device.
d. App Store Sourced Application.
(i) With respect to Apps accessed through or downloaded from the Apple App Store ("App Store Sourced Application"), you will use the App Store Sourced Application only: (i) on an Apple-branded product that runs iOS (Apple’s proprietary operating system software) that you own or control; and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. Fit Girls reserves all rights in and to the Apps not expressly granted to you under this Agreement.
(ii) You acknowledge and agree that (A) this Agreement is valid between you and Fit Girls only, (B) Apple is not a party to this Agreement other than as a third-party beneficiary as contemplated below, and (C) Fit Girls, not Apple, is solely responsible for the App Store Sourced Application and the Fit Girls Platform content.
(iii) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services to you with respect to the App Store Sourced Application.
(iv) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price of the App Store Sourced Application to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application.
(v) Notwithstanding anything to the contrary herein, and subject to the terms in this Agreement, you acknowledge that, solely as between Apple and Fit Girls, Fit Girls and not Apple is responsible for addressing any claims you may have relating to the App Store Sourced Application, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims, (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vi) Further, you agree that if the App Store Sourced Application, or your possession and use of the App Store Sourced Application, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(vii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this subsection of the Agreement regarding App Store Sourced Applications, 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 subsection of the Agreement regarding App Store Sourced Applications against you as a third-party beneficiary thereof.
(viii) You 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.
14. Modifications to the Fit Girls Platform.
Fit Girls reserves the right in its sole discretion to review, improve, modify or discontinue, temporarily or permanently, the Fit Girls Platform or any content or information on the Fit Girls Platform with or without notice. Fit Girls will not be liable to any party for any modification or discontinuance of the Fit Girls Platform.
15. Disclaimer of Warranties; Limitation on Liability.
THE FIT GIRLS PLATFORM, FIT GIRLS MATERIALS, GIFT CODES, PRODUCTS (INCLUDING SOFTWARE), AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE FIT GIRLS PLATFORM ARE PROVIDED BY FIT GIRLS ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. FIT GIRLS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE FIT GIRLS PLATFORM, FIT GIRLS MATERIALS, GIFT CODES PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE FIT GIRLS PLATFORM, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE FIT GIRLS PLATFORM IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FIT GIRLS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FIT GIRLS DOES NOT WARRANT THAT THE FIT GIRLS PLATFORM, GIFT CODES, FIT GIRLS MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE FIT GIRLS PLATFORM, FIT GIRLS’ SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM FIT GIRLS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. IN THE EVENT THAT A GIFT CODE IS NONFUNCTIONAL, YOUR SOLE REMEDY, AND FIT GIRLS’ SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH CODE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, FIT GIRLS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING PERSONAL INJURY, ARISING FROM THE USE OF THE FIT GIRLS PLATFORM, GIFT CODES, FIT GIRLS MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE FIT GIRLS PLATFORM, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FIT GIRLS EXCEED THE AMOUNT YOU PAID FIT GIRLS, IF ANY, IN THE PAST YEAR FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.
BY USING THE FIT GIRLS PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE FIT GIRLS PLATFORM.
YOU ACCEPT THAT, AS A CORPORATION, FIT GIRLS HAS AN INTEREST IN LIMITING THE PERSONAL LIABILITY OF ITS OFFICERS, DIRECTORS AND EMPLOYEES. YOU AGREE THAT YOU WILL NOT BRING ANY CLAIM PERSONALLY AGAINST FIT GIRLS’ OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH ANY DISPUTE, LOSS, OR DAMAGE ARISING OUT OF YOUR USE OF THE FIT GIRLS PLATFORM, A GIFT CODE, THE FIT GIRLS MATERIALS, PRODUCTS (INCLUDING SOFTWARE), OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE FIT GIRLS PLATFORM. WITHOUT PREJUDICE TO THE FOREGOING, YOU AGREE THAT THE LIMITATIONS OF WARRANTIES AND LIABILITY SET OUT IN THIS AGREEMENT WILL PROTECT THE FIT GIRLS’ OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, PARENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, AND SUB-CONTRACTORS, AS WELL AS FIT GIRLS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You hereby agree to indemnify, defend, and hold harmless Fit Girls, its licensors, and each such party's directors, officers, parent organizations, subsidiaries, affiliates, members, employees, agents, attorneys, independent contractors and vendors from and against any and all claims, losses, expenses, liabilities, damages, or demands (including attorneys' fees and costs incurred), in connection with or resulting from, directly or indirectly: (a) your use of or inability to use the Fit Girls Platform; (b) your violation of this Agreement, (c) your violation of any applicable law or regulation; d) your violation of the rights of another; or (e) Your Content. Fit Girls reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any such claim or matter without the prior written consent of Fit Girls.
17. Mutual Arbitration Agreement.
a. Covered Claims. YOU AND FIT GIRLS MUTUALLY AGREE THAT ALL CLAIMS OR DISPUTES, PAST, PRESENT, OR FUTURE, THAT YOU MAY HAVE AGAINST FIT GIRLS OR THAT FIT GIRLS MAY HAVE AGAINST YOU, INCLUDING ANY CLAIM OR DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR A VIOLATION OF THIS AGREEMENT, UNLESS SPECIFICALLY EXCLUDED BELOW, SHALL BE DECIDED BY AN ARBITRATOR THROUGH ARBITRATION AND NOT BY A JUDGE OR JURY OR ANY OTHER ADJUDICATORY PROCEEDING (“Arbitration Agreement”). However, the only claims and disputes subject to arbitration are those that, in the absence of this Arbitration Agreement, could be brought under applicable law.
Additionally, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of the Arbitration Agreement. However, the preceding sentence shall not apply to the Class Action Waiver described in Section 17(d) below. Regardless of anything else in this Agreement and/or the American Arbitration Association (“AAA”) rules or procedures, any dispute relating to the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
b. Governing Law. This Arbitration Agreement and this Section 17 are governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“FAA”).
c. Excluded Claims and Disputes. You and Fit Girls agree that the following claims or disputes are excluded from and not covered by this Arbitration Agreement: (1) any claim or dispute seeking to enforce or protect, or concerning the validity of, any of your or Fit Girls’ intellectual property rights; (2) individual claims brought in small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief. Additionally, nothing in this Arbitration Agreement prevents the making a report to or filing a claim or charge with a government agency.
d. WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action ("Class Action Waiver").
e. Rules/Standards Governing Proceeding. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules (the "AAA Rules") of the AAA and, where appropriate, the AAA's Supplementary Procedures for Consumer Related Disputes ("AAA Consumer Rules"), both of which are available at the AAA website (www.adr.org).
A party who wishes to arbitrate a claim or dispute covered by this Arbitration Agreement must initiate an arbitration proceeding no later than the expiration of the statute of limitations that applicable law prescribes for the claim asserted. The arbitrator shall apply the statute of limitations that would have applied if the claim or dispute had been brought in court. The arbitrator may award any remedy to which a party is entitled under applicable law and this Agreement, but remedies shall be limited to those that would be available to a party in his or her individual capacity. No remedies that otherwise would be available under applicable law will be forfeited. The arbitrator shall apply the substantive federal, state, or local law applicable to the claims asserted. The arbitrator is without authority to apply any different substantive law. The parties have the right to conduct adequate civil discovery and present witnesses and evidence as needed to present their cases and defenses, and any dispute in this regard shall be decided by the arbitrator. The arbitration proceeding shall take place in the city or county where you reside unless each party agrees otherwise. A court of competent jurisdiction shall have the authority to enter judgment upon the arbitrator's decision/award.
The fees for administering the arbitration and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). In all cases where required by law, Fit Girls will pay the Arbitrator's fees and the fee for administering the arbitration. If under applicable law Fit Girls is not required to pay all of the arbitrator's and/or arbitration fees, such fee(s) will be apportioned in accordance with applicable law and the AAA Rules and/or AAA Consumer Rules, and any disputes in that regard will be resolved by the arbitrator. Parties are responsible for their own attorney’s fees, subject to any remedies to which that party may later be entitled under applicable law.
18. Governing Law; Jurisdiction.
Except for the Arbitration Agreement in Section 17, which is governed by the Federal Arbitration Act, this Agreement is governed and interpreted pursuant to the laws of the State of Illinois, United States of America, without reference to its conflicts of law provisions. For all Disputes not subject to arbitration, you agree to submit to the personal and exclusive jurisdiction and venue of the courts located within Cook County, Illinois.
This Agreement may not be assigned or transferred by you without Fit Girls’ prior written approval. Fit Girls may assign or transfer this Agreement without your consent, including but not limited to assignments: (i) to a parent or subsidiary corporation, (ii) to an acquirer of assets, or (iii) to any other successor or acquirer. Any assignment in violation of this Section 19 shall be null and void. This Agreement shall inure to the benefit of permitted successors and assigns.
20. Term and Termination; Survival.
a. Term. This Agreement shall continue in full force and effect until such time as it is terminated by you or by us.
b. Termination by Fit Girls. Fit Girls may terminate this Agreement or terminate or suspend your right to use the Fit Girls Platform at any time for any or no reason (including, without limitation, in the event that Fit Girls believes that you have breached this Agreement or any policy posted on the Fit Girls Platform, or if Fit Girls otherwise finds that you have engaged in inappropriate and/or offensive behavior (collectively, "Prohibited Conduct")) by providing you with written or email notice of such termination to the physical or email address you have provided us. Termination will be effective immediately upon such notice. Fit Girls will refund in full any payments for Fit Girls orders that have not been delivered.
c. Termination by You. You may terminate this Agreement by completely and permanently ceasing to use the Fit Girls Platform, provided that you do not owe payment for any Fit Girls’ products and services. If you attempt to terminate this Agreement while there are orders outstanding, your termination of the Agreement will automatically cancel your orders.
d. Survival. All provisions that should by their nature survive the expiration or termination of this Agreement, including without limitation, Sections 1, 11 and 15-23, shall so survive.
21. General Provisions.
No agency, partnership, joint venture, employer-employee, or franchiser-franchisee relationship is intended or created by this Agreement. A failure by us to enforce any provision(s) of this Agreement will not be construed as a waiver of any provision or right. This Agreement constitutes the entire agreement between you and Fit Girls with respect to its subject matter. If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions will be enforced to the fullest extent possible, and the remaining provisions will remain in full force and effect. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. All notices provided by a party in connection with this Agreement will be deemed given as of the day they are received either by email, messenger, delivery service, or in the U.S. Mail, postage prepaid, certified or registered, return receipt requested, and addressed as follows: Your address for such notices is your email address and/or physical address that you have provided to Fit Girls. Fit Girls’ address for such notices is described in Section 23. The captions in this Agreement are solely for convenience and shall not affect the interpretation of this Agreement. This Agreement shall not be modified except in writing signed by both parties or by means of a new posting by Fit Girls, as described below. This Agreement shall be interpreted as if jointly drafted by the parties. Fit Girls shall have no liability to you for any failure or delay in performing its obligations in this Agreement where such failure or delay is caused by an event or circumstance beyond Fit Girls’ reasonable control including, without limitation, strikes, lock-outs and other industrial disputes, breakdown of systems or network access, flood, fire, explosion, acts of terrorism or accident.
22. Changes to this Agreement.
Except for Section 17 of this Agreement, which may only be modified with your agreement after notice of the modification, Fit Girls reserves the right, in our sole and absolute discretion, to make changes to any of the terms and conditions of this Agreement at any time. If we change the terms and conditions of this Agreement, we will post those changes on this page and update the update date below. If we materially change the terms and conditions of this Agreement, we will notify you by prominently posting a notice of such changes before making them and by stating the effective date of the changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in compliance with this Agreement, you must terminate, and immediately stop using, the Fit Girls Platform. Your continued use of the Fit Girls Platform following any revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
23. Contact Information.
If you have any questions regarding this Agreement, please contact us at firstname.lastname@example.org or by mail at:
60 B W Terra Cotta Ave STE #299
Crystal Lake, Illinois
For disputes concerning copyright infringement under Section 12 of this Agreement, please contact:
Or via Mail:
Attn: Copyright Agent
60 B W Terra Cotta Ave STE #299
Crystal Lake, Illinois
Last updated: January 7th, 2016