FITGRID USER TERMS OF SERVICE

 

Effective Date: July 20, 2017, amended July 23, 2020

 

Welcome to FitGrid, which is owned and operated by YourGuru, Inc. (“FitGrid,” “us,” or “we”). FitGrid facilitates Fitness Studios (“Studios”) and their Instructors (“Instructors”) to better communicate (and manage their communications) with you as their customer (“you” or “Customer”) and to help you find and make the most of their fitness offerings as you pursue your fitness goals. Beyond the services provided to you on behalf of Studios and their Instructors, FitGrid also provides services directly to you to allow you to connect with friends and instructors and enjoy your fitness pursuits in ways that extend beyond any one or more of the Studios we work with.

 

The Service Relationship Between You and FitGrid between You and Studios

 

As an individual user, you may have downloaded and be using the FitGrid app (“FitGrid App”) and FitGrid offerings (together with the FitGrid App, individually and collectively, the “FitGrid Services”) because you have found us on your own or been invited by a Studio, Instructor, or friend with your contact information who is using FitGrid’s sharing functionality via email, text or social media platform, or otherwise.  As a result, you may be using the FitGrid App to:

 

·       manage and support your participation, purchases, customer accounts and other interactions with one or more Studios or their Instructors (including via their vendors), in which case FitGrid will operate as an intermediary service provider between you and such Studios and Instructors (including their vendors such as Mindbody and other booking engines and platforms) and allow you to synchronize your activities with them so that you may view your history of bookings and attendance or use any current series, membership, gift card or account credits you have purchased, or be supported in making new bookings and purchases; and/or

 

·       use our social network and other tools included in our FitGrid Services to send and receive communications and otherwise discover and interact with other users of the FitGrid App and FitGrid’s network of Studios and Instructors; and/or

 

·       discover, benefit from or engage with offerings of other service providers and other businesses (“Third Party Offerings”) that may be featured in or introduced by FitGrid via the FitGrid App.

 

Whenever you use the FitGrid App to access the offerings of one or more Studios, such Studio(s) are FitGrid’s customer and such Studio(s) is (or are) authorizing FitGrid and you to use  the FitGrid App to communicate and receive communications from and otherwise interact with such Studio(s) and its (or their) Instructors. Our Studios and their vendors such as booking engine service provider (collectively, “Vendors”) and/or their Instructors grant FitGrid the right to use and/or share information they have manually input or electronically obtained about you as well as information you have submitted (including information, communications and/or content you provide or upload or create) in your use of the FitGrid App and/or via other interactions with the FitGrid Services (such as, by way of example, video streaming, SMS, emails and/or social media platforms) (collectively, the “User Data”). You acknowledge and agree that in certain instances or circumstances, the User Data may be owned or rightfully possessed by such Studio(s) and/or its Vendor(s) and our agreement with such Studio(s) might give them many choices and control over how such User Data is processed, shared or used. For example, a Studio may provision or deprovision access to all or specific aspects of the FitGrid App or FitGrid Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer, assign, share or consolidate offerings with other offerings. These choices and instructions may result in the access, use, disclosure, modification or deletion of certain or all User Data.

 

AS BETWEEN FITGRID AND ANY OF ITS STUDIOS, YOU AGREE THAT IT IS SOLELY A STUDIO’S RESPONSIBILITY TO (A) INFORM YOU OF ANY RELEVANT TERMS OF SERVICE, PRIVACY AND OTHER POLICIES AND PRACTICES INCLUDING HOW ANY SUCH STUDIO (OR ITS VENDORS OR INSTRUCTORS) MAY USE OR PROCESSYOUR USER DATA; (B) OBTAIN ANY RIGHTS, PERMISSIONS OR CONSENTS FROM YOU THAT ARE NECESSARY FOR THEIR (AND OUR) LAWFUL USE OF YOUR USER DATA AND THE OPERATION OF THE FITGRID SERVICES IN RELATION TO SUCH STUDIO’S OWN OFFERINGS AND/OR ITS INSTRUCTORS’ OFFERINGS; (C) ENSURE THAT THE STORAGE, TRANSFER OR PROCESSING OF YOUR USER DATA BY SUCH STUDIO, ITS INSTRUCTORS AND ANY AND ALL OF ITS VENDORS IS LAWFUL; AND (D) RESPOND TO AND RESOLVE ANY DISPUTE WITH YOU MAY HAVE RELATING TO OR BASED ON SUCH STUDIO’S USE AND POSSESSION OF YOUR USER DATA, THE STUDIO’S OR ITS INSTRUCTORS’ OR ITS VENDORS’ SERVICES OR OFFERINGS OR ITS OR THEIR FAILURE TO FULFILL THESE OBLIGATIONS.  FITGRID MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO ANY STUDIOS’ OR THEIR INSTRUCTORS’ OR VENDORS’ OFFERINGS. 

 

In certain instances and contexts, FitGrid will provide you certain functionalities and services that cross over the top of multiple Studios or continue to be accessible even after you have terminated your association with one or more Studios. These User Terms and our Privacy Policies will apply in these limited instances when FitGrid is in control of how the functionalities and services are provided to you by the FitGrid App “above and beyond” what Studio(s) enable or provide.  FitGrid may also, in its sole discretion, offer trial services or beta services from time to time.  Any trial or beta service is provided “AS IS” with no warranties of any kind.  FitGrid may discontinue any trial or beta services at any time, with or without notice, and without any further obligations to you.  FitGrid will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta services.

 

You also acknowledge and agree that the availability of the FitGrid App is dependent on the third party from whom you received the FitGrid App license, e.g., the Apple Store or Google Play (“App Store”) and in order to use the FitGrid App, you may need to have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the FitGrid App. You agree to comply with, and your license to use the FitGrid App is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the FitGrid App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of these User Terms and will have the right to enforce them.

 

Additionally, in addition to access to the Studios’ offerings, FitGrid may provide Third Party Offerings on the FitGrid App (including via sponsorship, advertising or other links to third party websites).  Although the FitGrid App and FitGrid Services may refer to or allow you to access or use Third Party Offerings, they are not FitGrid Services under these User Terms and are not subject to any of the warranties, service commitments or other obligations with respect to FitGrid Services hereunder.  FitGrid does not control Third Party Offerings and will have no liability to you in connection with any Third Party Offerings.  FitGrid has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time.  By using or enabling any Third Party Offering, you are expressly permitting FitGrid to disclose your User Data or other information to the extent necessary to utilize the Third Party Offering.

 

You understand and agree that FitGrid is not responsible for the goods and services that you purchase from Studios or in connection with Third Party Offerings through the FitGrid App. Either such Studio(s) or third party merchant making the Third Party Offering available, and not FitGrid, provide those goods and services. These third parties, and not FitGrid, are responsible for customer service related to those goods and services, including the nature, content and quality of the class or appointment, and reservation, cancellation, return and refund policies, adjustments, rebates, functionality and warranty, technical support, and issues concerning experiences with a merchant’s personnel, policies, or processes.  Further, please be advised that any Studios and their Instructors (and Vendors) or third parties providing Third Party Offerings that you have or have had prior interactions with may have received and/or still have access to your User Data as a customer of FitGrid (and through data processing services FitGrid provides such parties).  Accordingly, such Studio(s) and/or third party merchants may, based on permissions you have given them and subject to their respective applicable policies, be able to contact you or interact with you (including through the FitGrid App and also including if you may have advised us to delete or cease to use any of your User Data in connection with any FitGrid Services). The foregoing also includes that Instructors and/or Vendors working with multiple Studios in our network may use your User Data to contact you (including through the FitGrid App) on behalf of another one or more Studios they also work with even if you have not previously interacted with such other Studios.  To be clear, FitGrid does not sell your User Data.  Our uses of your User Data are always specific to our provision of services to the Studios as our customers, supporting their Instructors and Vendors.  In the case of Third Party Offerings, we will only make any User Data available if you have given us your consent or you provide the User Data by interacting with such offer. 

 

IN ALL SUCH INSTANCES, YOUR USE OF ANY STUDIOS’, INSTRUCTORS’ OR THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH OFFERINGS SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF SUCH PROVIDERS OF SUCH OFFERINGS. FitGrid assumes that you will direct any questions or complaints about such offerings to them.

 

Agreements between FitGrid and You

 

You must be eighteen (18) years of age or older to use or enjoy benefits of the FitGrid Services and have not been previously suspended or removed from our FitGrid Services.  By using the FitGrid App and FitGrid Services you understand and accept that FitGrid is based in the United States and operates its service  so you are submitting to the laws of the United States and using the FitGrid Services as if you are a U.S. resident with the protections of the State of New York and laws of the United States applying.  Please review these User Terms carefully before using the Services because they affect your rights. By using any of the Services, you accept these User Terms and have ensured that you and your agents, heirs, successors and other affiliates have agreed to be legally bound by them.

 

ARBITRATION NOTICE: THESE USER TERMS CONTAIN AN ARBITRATION CLAUSE. YOU AND FITGRID AGREE THAT DISPUTES BETWEEN US WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION, AND YOU AND FITGRID WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.

 

We may, in our sole discretion, make changes to these User Terms which will become effective when we post a modified version of the User Terms to our FitGrid App or our website at www.FitGrid.com.  If we make any material changes to these User Terms, we’ll also notify you via the FitGrid App and/or other methods of communication we have as means to contact you regarding the FitGrid Service.  It is your obligation to ensure that you read, understand and agree to the latest version of the User Terms that is posted to FitGrid’s Website. If you do not agree with any changes to these User Terms, your sole remedy is to not use the FitGrid Services and/or send us a request at support@fitgrid.com to delete your FitGrid Account.  If you continue to use the FitGrid App or any other FitGrid Services after we change these User Terms, you consent to be bound by the User Terms as amended. 

 

FitGrid App Registration and Account Activation.

 

The FitGrid App allows you to create one (1) universal consumer profile that enables you to perform aggregated searches, then schedule and book fitness and other services offered by thousands of participating Studios, among other features and services. The FitGrid App also enables you to synchronize any accounts you have with Studios you belong to or attend classes of, so that you may use any current series, membership, gift card or account credits you may have with such Studios, and purchase new or additional services.

 

You must complete the registration within the FitGrid App (“FitGrid Account”) by providing the information requested. You must provide accurate and up-to-date information. As part of such registration process, and in order to complete registration within the FitGrid App and access and use the features of the FitGrid Service. You must notify FitGrid immediately of any breach of security or unauthorized use of your mobile phone.  Although FitGrid will not be liable for your losses caused by any unauthorized use of your FitGrid Account, you may be liable for the losses of FitGrid or others due to such unauthorized use.  Your FitGrid Account is non-transferrable and may not be sold, combined or otherwise shared with any other person.  We reserve the right to suspend or terminate your FitGrid Account and access and use of the FitGrid App including if you provide inaccurate, untrue, or incomplete information or if you attempt to use the FitGrid App to engage in illegal or unethical activities.

 

The version of FitGrid App you use may allow you to register through your Facebook account (“Facebook Account”) and/or otherwise link your use of the FitGrid App with your Facebook Account. By doing so, you will be allowing FitGrid to access your Facebook Account as permitted under the applicable terms and conditions that govern your use of your Facebook Account. You represent that you are entitled to grant FitGrid the right to access your Facebook Account for all of the purposes contemplated herein without breach by you of any of the terms and conditions that govern your use of your Facebook Account and without obligating FitGrid to pay any fees or making FitGrid subject to any usage limitations imposed by Facebook. PLEASE NOTE THAT YOUR RELATIONSHIP WITH FACEBOOK IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH FACEBOOK, AND FITGRID DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO US BY FACEBOOK IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN YOUR FACEBOOK ACCOUNT.  WITHOUT LIMITING THE FOREGOING, BY CONNECTING OR LINKING YOUR ACCOUNT TO ANY SOCIAL MEDIA SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE CONSENTING TO THE CONTINUOUS RELEASE OF INFORMATION ABOUT YOU TO FACEBOOK AS MAY BE REGULATED BY YOU VIA YOUR FACEBOOK ACCOUNT IN ACCORDANCE WITH YOUR PRIVACY AND OTHER SETTINGS THAT CAN BE FOUND ON FACEBOOK.

 

Your Authorization of Purchases Made Through the FitGrid App.

 

The FitGrid App may refer you to purchase services from Studios using third party Vendors (such as Mindbody or other booking engines or platforms) and/or FitGrid’s third party payment services such as Stripe or other credit and debit card-based methods (collectively, the “Payment Services”).  By associating a payment card with your FitGrid Account and searching for and reserving services in the FitGrid App, you are agreeing to pay for FitGrid Services via the FitGrid App by authorizing a charge and/or fee to your payment card as necessary complete a booking or other purchase (including by applying account credits or other credits, loyalty points, gift cards, membership rights and/or the like).  By using the FitGrid App, you give FitGrid permission to use and display your photograph and likeness in connection with your participation and enjoyment of each Studio’s or Instructor’s offerings you sign up with and can manage through the FitGrid App and to import, use and share your email address, first and last name and purchase histories with the Studios you make such purchases with and their Vendors.

 

Your FitGrid Account or another Payment Service may require you to make payments on a compatible mobile device.  FitGrid does not warrant that the FitGrid App will be compatible with your mobile device or third party carrier.  You may not associate Health Savings Account cards with your FitGrid Account, even if they have a Visa, MasterCard, American Express, or Discover logo on them.  In the event you are entitled to a reversal, refund, chargeback, or other adjustment associated with a purchase you made via the FitGrid App, in most cases, you will need to engage with the applicable Studio from which you made such purchase but in the event such fee or charge was handled by FitGrid and FitGrid is responsible for fulfilling such reversal, refund, chargeback or other adjustment, you also authorize FitGrid to apply a credit to your payment card to accomplish that transaction.  Please also note that purchases you authorize through the FitGrid App may be subject to terms and conditions set forth by the relevant Studio or applicable Payment Services as well as the entities that issue your card.  You are responsible for complying with those terms and conditions, and you are responsible for charges and related fees and billing terms imposed by those terms and conditions as well as any fees and/or surcharges imposed by FitGrid or a Studio (or its Vendor(s)). 

 

FitGrid may increase any fees from time to time upon notice to you including through the FitGrid App.  Fees may not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction (collectively, “Taxes”).  You are responsible for paying all Taxes associated with purchases and transactions under these User Terms including from or with Studios via Vendors.  If FitGrid is legally required to pay or collect any Taxes on your behalf, FitGrid will charge you via an appropriate Payment Service and you agree to the payment of such amount.

 

Restrictions on Use.

 

The FitGrid App and your FitGrid Account may only be used in a country or territory where current Studios exist and the laws of that country or territory permit its use. You may not export the FitGrid App directly or indirectly, and you acknowledge that the FitGrid App may be subject to export restrictions imposed by U.S. law, including U.S. Export Administration Regulations (15 C.F.R. Chapter VII).

 

By creating a FitGrid Account, you also confirm that you will not use the FitGrid Services in support of or in connection with the following: (1) any illegal activity, (2) credit counseling or repair agencies, (3) credit protection or identity theft protection  services, (4) direct marketing or subscription offers or services, (5) infomercial sales, (6) internet/mail order/telephone order pharmacies or pharmacy referral services (where fulfillment of medication is performed with an internet or telephone consultation, absent a physical visit with a physician including re-importation of pharmaceuticals from foreign countries), (7) multi-level marketing businesses, (8) inbound or outbound telemarketing, (9) prepaid phone cards or phone services, (10) rebate based businesses, (11) upsell merchanting, (12) bill payment services, (13) betting, including lottery tickets, casino gaming chips, off- track betting, and wagers at races, (14) financial institutions offering manual or automated cash disbursements, (15) financial institutions offering merchandise and services, (16) sales of money orders or foreign currency by non-financial institutions, (17) wire transfer money orders, (18) high-risk merchants, including telemarketing merchants, (19) service station merchants, (20) automated fuel dispensers, (21) adult entertainment oriented products or services (in any medium, e.g., internet, telephone or printed material), (22) internet/mail order/telephone order firearm or weapon sales, (23) internet/mail order/telephone order cigarette or tobacco sales, (24) drug paraphernalia, (25) hate products, (26) escort services, and/or (27) bankruptcy attorneys.

 

We may decide not to process or enable an interaction transaction or other activity if we become aware of the same and are able to determine that the transaction is in violation of these User Terms, applicable laws or any other FitGrid agreement or policies or practices or might expose you, other FitGrid users, our partners (including any Studios or Instructors) or FitGrid to harm. Harm includes fraud, harassment and other criminal acts.  If we reasonably suspect that your FitGrid Account, the FitGrid App and/or FitGrid Services have been used for any activity that is the subject of an alleged or actual criminal or civil complaint or claim including for any alleged or actual unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your FitGrid Account, and/or any of your transactions with law enforcement or other governmental authority or pursuant to administrative or court order.

 

Studio Promotions or Loyalty Programs.

 

Studios may choose to offer individual promotions or promotional or loyalty programs (“Promotions”) to reward their customers. These Promotions may be viewed and in some cases be managed via the FitGrid App.  Any Promotion and any rewards associated with them are offered by the Studio (and not by FitGrid). Should you have questions about any Studio promotion or loyalty program, please ask the Studio for more information about the promotion or program, including any applicable terms and conditions.  Benefits associated with Studio promotions or loyalty programs have no cash value, and Studio may choose to discontinue its promotion or loyalty program(s) at any time.  FitGrid may also block access or disable tools that allow for the viewing, management or linking to any Promotion and will have no obligation or liability if, as a result, you fail or are unable to realize a benefit otherwise available to you thereunder. 

 

FitGrid Rewards Program

 

New users will be offered up to five (5) free classes at Studios you have not attended before.  To earn credits that can be used to book and attend such free classes, you will be required to complete the registration process and purchase and attend all of the classes required to earn such free classes through using the FitGrid App at participating Studios.  You will find more details and a list of participating Studios in a special area within the FitGrid App.  In order to take part, you will be required to provide FitGrid with your mobile phone number and verify via an SMS text message. You may be charged by your mobile carrier to complete this process.  There are restrictions and rules that apply including the following:

1.     You receive one Reward Credit upon completing your FitGrid App registration after downloading the FitGrid App.  You will be able to use the Reward Credit and earn more Reward Credits by signing up for the Reward Program in the FitGrid App using your mobile phone number.  Once you sign up on one device, you can track your Reward Credits using FitGrid Apps on multiple devices.

2.     You can earn up to four (4) additional Reward Credits for a maximum of five (5) Reward Credits per FitGrid Account.  Each additional Reward Credit can be earned by using the FitGrid App to book and then attend at least three (3) classes at another participating Studio.  If you do not actually attend the class (or attend only partially or for any other reason are not marked by the Studio as having attended the class), the class you booked (even if you have purchased the class and did not receive a refund) will not count towards earning a Reward Credit.. 

3.     Each Reward Credit must be redeemed for a free class at a participating Studio you have never attended before (based on records maintained by the Studio as accessed by FitGrid). 

4.     For all determinations, FitGrid’s and the Studio’s records of whether you booked and attended a class will prevail.

5.     The first Reward Credit will expire 3 months after you have downloaded and completed the FitGrid App registration process for the first time.  After that, additional Reward Credits will expire 3 months after such Reward Credit on the date indicated in the FitGrid App.

The rules of participation may change.  The rewards offered by this FitGrid program and the associated benefits have no cash value, and either FitGrid or any of the participating Studios may choose to discontinue this promotion or their participation at any time. 

 

Your Privacy.

 

Our privacy policy governs how we collect and use personal information that is submitted through our apps and services. Upon agreeing to be bound by these User Terms you confirm that you have read, understood and accepted FitGrid’s Privacy Policy located at https://terms.fitgrid.com/privacy-policy-client.html.

 

Disclosures and Notices.

 

You acknowledge and agree that FitGrid may provide disclosures and other notices required by law and other information about your FitGrid Account to you electronically by posting them on the FitGrid App (including through the notification features that work in connection with your mobile device) or by emailing the email address listed in your FitGrid Account. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. You are responsible for providing FitGrid with your most current e-mail address. In the event that the last e-mail address you provided to FitGrid is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these User Terms, FitGrid’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.

 

User Content.

 

The FitGrid App requires (and some FitGrid Services may require) you and other users to submit text, photos, images, health and fitness preferences or information, interests, ideas, suggestions, feedback, documents, commentary or other information (“User Content”).  For any User Content that you upload to the FitGrid App, you grant us and our subsidiaries, affiliates, and successors a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully-paid, transferable, and sublicensable right and license to use, license, reproduce, modify, adapt, publish, translate, prepare derivative works of, distribute, derive revenue or other remuneration from, and communicate to the public, perform, and display that User Content (in whole or in part) throughout the world in any media in order to provide and promote the FitGrid App and FitGrid’s business. You retain all rights in your User Content, subject to the rights granted to FitGrid in these User Terms. You may modify or remove your User Content via your FitGrid Account.

 

You alone are responsible for User Content you post. We do not guarantee that User Content will be or remain private or confidential even if the User Content is in a password-protected, encrypted or otherwise secured area.  You should think carefully about what proposed User Content you decide to upload to the FitGrid App and FitGrid Services and you should not upload or otherwise provide User Content that you don’t want to be made public and you should assume that the Studios and Instructors you interact with and any other person (whether or not a user of the FitGrid App or FitGrid Services) may read or view your User Content.  Any or all User Content may be displayed to Studios or Instructors for informational purposes only or visible to other FitGrid users.  User Content are not controlled by and do not reflect the opinion of FitGrid.  You bear all responsibility for your User Content, including the disclosure of any personal information contained therein.  You represent and warrant that you have all rights necessary to grant the license below and that your User Content do not and will not violate these User Terms and we may use them in accordance with the above license without any compensation to you.

 

You agree that you will not upload User Content to the FitGrid App unless you have created that content yourself or you have permission from the copyright owner to do so. You agree not to upload to the FitGrid App or otherwise post, transmit, distribute, or disseminate through the FitGrid App any content that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity or privacy; (d) contains corrupted data or any other harmful, disruptive, or destructive files; (e) advertises products or services competitive with FitGrid’s or its partners’ products and services, as determined by FitGrid in its sole discretion; or (f) in FitGrid’s sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the FitGrid App, or which may expose FitGrid, its affiliates, or users to harm or liability of any nature.

 

You acknowledge that FitGrid has no obligation to pre-screen, edit, or monitor any User Content, although FitGrid reserves the right in its sole discretion to refuse, remove, screen, edit or disable any User Content at any time and for any reason without notice. You understand that by using the FitGrid App, you may be exposed to User Content that is offensive, indecent, or objectionable. We take no responsibility and assume no liability for any User Content, including any loss or damage to any of your User Content.  You agree that we will not be liable for User Content, including but not limited to any errors or omissions, or any loss or damage resulting from the use of any User Content.  If any User Content is deleted, it may still exist in our backup copies.  If your User Content was shared with third parties, including other users, those third parties may still have retained copies of your User Content and FitGrid does not have any responsibility for any uses of your User Content that we might make.   We retain the license above regardless of any deletion of User Content.

You understand that, when you use the FitGrid Services or, via FitGrid, the services of Studios and Instructors, you may be exposed to content (including other FitGrid and Studios’ users’ User Content) from a variety of sources and that we do not endorse. We are not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to such User Content.  You further understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent or objectionable.  YOU AGREE TO WAIVE AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST US WITH RESPECT TO ANY SUCH USER CONTENT.

 

Copyright Infringement Policy and other Legal Complaints

We honor the requirements set forth in the Digital Millennium Copyright Act (the “DMCA”).   If you believe that any content on the FitGrid Service infringes your copyright, please follow our procedures for making a copyright claim under the DMCA, as follows (for any other legal complaints, please follow the procedure in Dispute Resolution of Your Claim below):

1.       Copyright Infringement Policy: Send a written DMCA notice (“Notice”) to FitGrid’s designated copyright agent:   Ntiedo Etuk – Copyright AgentYourGuru, Inc.33 West 17th Street7th FloorNew York, New York 10011support@fitgrid.com

2.       If you file a notice with your Copyright Agent, it must comply with the requirements set forth at 17 U.S.C. § 512(c)(3).  That means your Notice must include:

·       Identification of the copyrighted work or works claimed to have been infringed

·       Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material (e.g. a link)

·       Your contact information, such as an address, telephone number and email address

·       A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner

·       A statement that the information in your Notice is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner

·       A physical or electronic signature of the person authorized to act on behalf of the owner of the infringed copyright

·       Identification of the material removed or disabled and location where it appeared before removed or disabled

·       A statement under penalty of perjury that alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material or other error

·       Alleged infringers name, address and telephone number and statement that alleged infringer consents to the jurisdiction of the federal district court in which the alleged infringer’s address is located (or if alleged infringer is outside of the U.S. any judicial district in which FitGrid may be found, which includes the District Court for the Southern District of New York) and accepts service of process from the complaining party or its agent and

·       A physical or electronic signature of the alleged infringer

3.       When we receive a Notice that complies with the DMCA we will remove the identified material promptly.  We will promptly take reasonable steps to inform the user who posted the allegedly infringing material of the Notice and subsequent removal.  The alleged infringer may then provide us with a counter notice that the initial infringement notice was erroneous (“Counter-Notice”). 

4.       The Counter-Notice must be in writing and include:

·       Identification of the material removed or disabled and location where it appeared before removed or disabled;

·       A statement under penalty of perjury that alleged infringer has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material or other error;

·       Alleged infringers name, address and telephone number and statement that alleged infringer consents to the jurisdiction of the federal district court in which the alleged infringer’s address is located (or if alleged infringer is outside of the U.S. any judicial district in which FitGrid may be found, which includes the District Court for the Southern District of New York);

·       Accept service of process from the complaining party or its agent; and

·       A physical or electronic signature of the alleged infringer.

Upon receipt of a Counter-Notice in compliance with the DMCA we will notify you and restore the material to our Site or Service within 10 business days of receipt of the Counter-Notice unless you inform us that you have filed an action seeking a court order to restrain the allegedly infringing party from engaging in infringing activity related to the material on our FitGrid website or FitGrid App or within context of our other FitGrid Services.

 

Rights to Cease Using App or Terminate; Effects of Termination

 

You may cease to use the FitGrid App at any time.

 

We may terminate these User Terms and your access to the FitGrid App for any reason or no reason (with or without notice) at any time, including (but not limited to), if you (a) have violated these User Terms or any other agreement you have with FitGrid or FitGrid’s policies, (b) pose an unacceptable credit or fraud risk to us or the Studios or their Vendors, and/or (c) provide any false, incomplete, inaccurate, or misleading information or otherwise engage in fraudulent or illegal conduct on the FitGrid App.  Further, FitGrid may suspend or terminate the FitGrid Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of FitGrid Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to FitGrid or any third party, or (b) that we are required to do so by applicable law.

 

 

If your FitGrid Account is terminated, you agree: (a) to continue to be bound by these User Terms, (b) to immediately stop using the FitGrid App, (c) that we reserve the right (but have no obligation) to continue to store or delete any or all of your information and account data stored on our servers, and (e) that FitGrid shall not be liable to you or any third party for termination of access to the FitGrid App or other benefit of the FitGrid Services, or for deletion of your information or account data.  We will not be liable to you for compensation, reimbursement, or damages in connection with your use of the FitGrid App, or in connection with any termination or suspension of the FitGrid App. Any termination of these User Terms does not relieve you of any obligations to pay any fees or costs accrued prior to the termination and any other amounts owed by you as provided in these User Terms.

 

License Grant to You.

 

Subject to your compliance with these User Terms, FitGrid hereby grants you a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the FitGrid App on a single mobile device that you own or control and to run such copy of the FitGrid App to find and reserve services and make purchases from Studios and otherwise use the FitGrid Services, among other offerings on the FitGrid App, in accordance with these User Terms. You will not: (a) modify, copy or create any derivative works based on the FitGrid App; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the FitGrid App available to any third party; (c) reverse engineer or decompile any portion of the FitGrid App; (d) access or use (or allow a third party to access or use) the FitGrid App for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the FitGrid App; or (f) otherwise use or exploit the FitGrid App in any manner not expressly permitted by these User Terms. Furthermore, with respect to any app accessed through or downloaded from the FitGrid App Store, you will comply with the applicable FitGrid App Store’s terms and policies. You will be entitled to download updates to the FitGrid App, subject to any additional terms made known to you at that time, when FitGrid makes these updates available. You may be required to accept updates to the FitGrid App in order to continue to use the FitGrid App.

 

 

Ownership.

 

The FitGrid App is licensed and not sold. FitGrid reserves all rights not expressly granted to you in these User Terms. The FitGrid App is protected by copyright, trade secret and other intellectual property laws. FitGrid owns the title, copyright and other worldwide intellectual property rights in the FitGrid App and all copies of the FitGrid App. These User Terms do not grant you any rights to FitGrid’s trademarks or service marks.

 

Feedback.

 

You may choose to, or we may invite you to, submit comments or ideas about the FitGrid App, including without limitation about how to improve the FitGrid App or our other products (“Feedback”). You represent and warrant that you have all rights necessary to submit Feedback. By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place FitGrid under any fiduciary or other obligation, and that we are free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, FitGrid does not waive any rights to use similar or related ideas previously known to FitGrid or developed by its employees, or obtained from sources other than you. FitGrid has no obligation to review any Feedback nor to keep any Feedback confidential, and FitGrid may use and redistribute Feedback for any purpose, without restriction and free of any obligation to acknowledge or compensate you.

 

Indemnification.

 

 You agree to indemnify, defend, and hold harmless the FitGrid Parties from and against any and all third party claims alleged or asserted against any of them, and all related complaints, charges, claims, damages losses, costs, liabilities, and expenses (including, but not limited to, reasonable attorneys' fees and costs) due to, arising out of, or relating in any way to: (a) use (or misuse) of the FitGrid App or FitGrid Services (including without limitation any authorized or unauthorized use of your FitGrid Account), (b) provision of User Content  or any other communications or uploads or other input you make on or in relation to the FitGrid App or any FitGrid Services, (c) any actual or alleged breach by you of these User Terms; (d) any access to or use of your FitGrid App or of any FitGrid Services accessible thereby; (e) any actual or alleged violation by you of the intellectual property, privacy or other rights of a third party; and (f) any dispute between you and another party regarding ownership of, or any use or access (including by FitGrid) to, your User Data or User Content.  Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold harmless the FitGrid Parties from and against any and all third-party claims asserted against any of them, and all related costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or relating to any actual or alleged breach by you of these User Terms. FitGrid reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with FitGrid in asserting any available defense and doing so will not otherwise excuse your indemnity obligations.

 

Representation and Warranties.

 

You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the FitGrid App and have the right, power, and ability to enter into and perform under these User Terms; (c) the name identified by you when you registered is your name; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business, including any applicable tax laws and regulations; (e) you will not use the FitGrid App or FitGrid Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the FitGrid App or FitGrid Services; and (f) your use of the FitGrid App will be in compliance with these User Terms.

 

Disclaimers.  THE FITGRID APP AND FITGRID SERVICES (AND ANY AND ALL STIDIO OFFERINGS AND THIRD PARTY OFFERINGS THAT ARE ACCESSIBLE THEREBY) ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITGRID MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE FITGRID APP OR FITGRID SERVICES OR ANY OTHER OFERINGS. FITGRID DOES NOT WARRANT THAT YOUR USE OF THE FITGRID APP OR FITRGRID SERVICES WILL (A) BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, (B) REMAIN UPDATED, COMPLETE OR CORRECT, (C) MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE FITGRID APP OR FITGRID SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT), OR (D) BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.  FITGRID EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY FITGRID.  YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF ANY MATERIALS FROM THE FITGRID APP OR ANY FITGRID SERVICES, CONTENT OR USER SUBMISSIONS. FITGRID TAKES NO RESPONSIBILITY AND ASSUMES NO LIABLITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.  YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE FITGRID PARTIES WILL BE RESPONSIBLE FOR.

ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH FITGRID AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “FITGRID PARTIES”). SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.  IN SUCH CASES, WARRANTIES AND DAMAGES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

To be clear, FitGrid’s commitments and responsibilities to you in respect of any services we offer extend to the specific functionality and feature sets and offerings of the FitGrid App and is meant in no way to include the fitness and other services and offerings provided by the Studios and/or Instructors or any of their Vendors or any Third Party Offerings by any third party advertisers, sponsors and/or other parties whose offerings may be accessed through our FitGrid App or FitGrid Services.

 

FitGrid makes no representations that the FitGrid App is appropriate or available for use in non-United States locations. Those who access or use the FitGrid App from non-U.S. jurisdictions do so at their own volition and 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 the FitGrid App 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. Unless otherwise explicitly stated, all materials found on the FitGrid App are solely directed to individuals, companies, or other entities located in the United States.

 

Limitations and Exclusions of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY LAW FITGRID WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE, OR MULTIPLE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA USE, GOODWILL, OR OTHER INTANGIBLE LOSSESS RESULTING FROM (A) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE FITGRID APP OR FITGRID SERVICES; (B) THE CONDUCT OR CONTENT OF OTHER USEROR THIRD PARTIES ON OR THROUGH THE SERVICES OR THIRD PARTY OFFERINGS OR CONTENT; OR (C) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR CONTENT, EVEN IF FITGRID HAS BEEN ADVISED OF THE POSSIBITY OF SUCH DAMAGES.  THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE FITGRID PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USER SUBMISSIONS, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT.  ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH FITGRID AND THE FITGRID PARTIES.

 

Export Controls

 

You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to FitGrid that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws.

 

Your Mobile Carrier

 

By importing any of your data through our FitGrid App, you represent that you have authority to share the transferred data with your mobile carrier or other access provider.  In the event you change or deactivate your mobile account, you must promptly update your account information with us to ensure that your messages are not sent to the person that acquires your old number and failure to do so is your responsibility. You acknowledge you are responsible for all charges and necessary permissions related to accessing the FitGrid App and FitGrid Services through your mobile access provider, including any related to push notifications, text messages or other messages directly sent to you outside or inside any of our mobile applications. Therefore, you should check with your provider to find out if the services are available and the terms and controls for these services and notifications with respect to your specific mobile devices. 

 

Right to Amend

 

We may, in our sole discretion, change or add to these User Terms at any time, and change, delete, discontinue, or impose conditions on any feature or aspect of the FitGrid App. We will also update the “Last Updated” date at the top of these User Terms. Any use of the FitGrid App after our publication of any such changes shall constitute your acceptance of these User Terms as modified. If you do not agree to any changes, you must stop using the FitGrid App, and you can terminate your FitGrid Account by emailing support@fitgrid.com. It is your obligation to ensure that you read, understand and agree to the latest version of these User Terms.

 

Assignment

 

These User Terms, and any rights and licenses granted hereunder, may not be transferred, delegated or assigned by you, but may be assigned, transferred or delegated by FitGrid without restriction. These User Terms are binding on the parties and their successors and permitted assigns.

 

Questions, Complaints, Claims.

 

If you have any questions, complaints or claims with respect to the FitGrid App, please contact us at support@fitgrid.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.

 

Electronic Communications.

 

The communications between you and FitGrid use electronic means, whether you visit the FitGrid App or send FitGrid e-mails, or whether FitGrid posts notices via the FitGrid App or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from FitGrid in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that FitGrid provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

 

Exclusive Venue.

 

To the extent the parties are permitted under these User Terms to initiate litigation in a court, both you and FitGrid agree that all claims and disputes arising out of or relating to these User Terms will be litigated exclusively in the state or federal courts located in New York County in the State of New York.

 

Governing Law.

 

These User Terms and any action related thereto will be governed and interpreted by and under 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these User Terms.

 

Limitation on Time to Initiate a Dispute.

 

Unless otherwise provided by applicable law, an action or proceeding by you relating to any dispute must commence within one (1) year after the cause of action accrues.

 

Release

 

You hereby release FitGrid and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the FitGrid App and/or any other FitGrid Services, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of these User Terms or your use of the FitGrid App and/or any other FitGrid Services. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by FitGrid or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the FitGrid App and/or any other FitGrid Services. Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

 

General Provisions of User Terms.

 

Except as expressly provided in these User Terms, these User Terms constitute a complete statement of the agreement between you and FitGrid, and describes the entire liability of FitGrid and its Vendors and your exclusive remedy with respect to your access and use of the FitGrid App and/or any other FitGrid Services. FitGrid shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, epidemic or pandemic, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. In the event of a conflict between these User Terms and any other FitGrid agreement or policy, these User Terms shall prevail on the subject matter of these User Terms. If any provision of these User Terms is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These User Terms do not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and FitGrid. Headings are included for convenience only, and shall not be considered in interpreting these User Terms. These User Terms do not limit any rights that FitGrid may have under trade secret, copyright, patent, or other laws. FitGrid’s failure to assert any right or provision under these User Terms shall not constitute a waiver of such right or provision. No waiver of any term of these User Terms shall be deemed a further or continuing waiver of such term or any other term.

 

Any provision that is reasonably necessary to accomplish or enforce the purpose of these User Terms shall survive and remain in effect in accordance with their terms upon and following the termination for whatever reason of these User Terms.

 

Arbitration Agreement.

 

Please read the following arbitration section (“Arbitration Agreement”) (with its separate terms and conditions but deemed incorporated into) as a part of these User Terms carefully. It requires you to arbitrate disputes with FitGrid and limits the manner in which you can seek relief from us.

 

a.                       Applicability of Arbitration Agreement. If a dispute of any kind arises with a Studio, you agree to resolve that dispute with the applicable Studio. For any dispute that you have with FitGrid, we will make every reasonable effort to resolve any disagreements that you have with us. If those efforts fail, by using the FitGrid App, you agree that ALL DISPUTES ARISING OUT OF OR RELATED TO THESE USER TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND FITGRID, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO THE PREVIOUS SENTENCE WILL BE RESOLVED by binding arbitration, rather than in court, except that (i) you or FitGrid may assert claims in small claims court if the claims qualify; and (ii) you or FitGrid may seek relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these User Terms or any prior to this version of these User Terms.

 

b.                       Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent A Registered Agent, Inc. located at 8 The Green, Suite A, Dover, Delaware 19901. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352- 5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, FitGrid will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, FitGrid will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.  If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration shall be initiated in the State of New York, United States of America. You and FitGrid further agree to submit to the personal jurisdiction of any federal or state court in New York County in the State of New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.  You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

 

c.                      Authority of Arbitrator. The arbitrator shall apply New York law consistent with the Federal Arbitration Act and shall have exclusive authority to (i) determine the scope and enforceability of this Arbitration Agreement, and (ii) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and FitGrid. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these User Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

 

d.                       Waiver of Jury Trial. YOU AND FITGRID HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and FitGrid are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in clause (a) of this Arbitration Agreement, above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these User Terms as a court would.  However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

 

e.                      Waiver of Class Actions or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this clause’s limitations as to a given claim for relief, then    the claim must be severed from the arbitration and brought into the State or Federal Courts located in New York County in the State of New York. All other claims shall be arbitrated.

 

f.                       30-Day Right to Opt Out. You have the right to opt out of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: FitGrid, Attn: Legal Department, 33 West 17th Street7th FloorNew York, New York 10011 or at legal@fitgrid.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your FitGrid username (if any), the email address you used to set up your FitGrid Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these User Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

 

g.                      Severability. Except as provided in clause (e) of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

 

h.                       Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with FitGrid.

 

i.                         Modification. Notwithstanding any provision in these User Terms to the contrary, we agree that if FitGrid makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Company at the following address: FitGrid, Attn: Legal Department 33 West 17th Street7th FloorNew York, New York 10011 or at legal@fitgrid.com. Modifications to this Arbitration Agreement will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this clause on "Modification" is not enforceable or valid, then this clause shall be severed from the Arbitration Agreement and the court or arbitrator shall apply the first Arbitration Agreement in existence after you began using the FitGrid App.