FitGrid Terms of Service

Version 1.0 - Effective Date: July 20, 2017

Welcome to FitGrid, which is owned and operated by YourGuru, Inc. (“FitGrid,” “us,” or “we”). FitGrid provides Fitness Studios (“Studios”), their customers (“Customers”), and their Instructors (“Instructors”) a way in which to communicate with one another in order to share and reach their fitness goals.

You must be eighteen (18) years of age or older and reside in the United States to use the Services. By using the services the services you represent that you are a resident of the United States, are at least 18 years old and have not been previously suspended or removed from our Services.

Please review these Terms of Service (the “Agreement”) carefully before using the Services because they affect your rights. By using any of the Services (or enabling your agents, employees, Instructors or Affiliates to do so), you accept this Agreement and have ensured that you, your agents, employees and Affiliates have agreed to be legally bound by them.

ARBITRATION NOTICE: THIS AGREEMENT CONATAINS 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.

General Terms.
1. This Agreement is a binding legal agreement between you and FitGrid. By using the Services, you state that (a) you can form a binding contract with FitGrid; (b) you will comply with this Agreement and all applicable local, state and national rules and regulations; and (c) you have read our Privacy Policy and agree to its terms.
2. If you are using the Services on behalf of a business or some other entity, you state that you are authorized to grant all licenses set forth in this Agreement and to agree to this Agreement on behalf of the Business or entity and that all reference to “you” and “your” in this Agreement are referring to that entity. You and FitGrid are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
3. This Agreement applies to any use of the Services, whether in connection with a paid subscription or a free trial. For clarity, this Agreement does not apply to use of the FitGridPro App. That has a separate User Agreement, which is accessible through the FitGridPro App. If you have entered into a Partner Agreement with FitGrid and there is a conflict between this Agreement and the Partner Agreement, the terms of the Partner Agreement shall apply.
4. We may, in our sole discretion, make changes to this Agreement which will become effective when we post a modified version of the Agreement to our Website. If we make any material changes to the Agreement, we’ll also notify you within the Service. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on our Website. If you do not agree with any changes to this Agreement, your sole remedy is to not use the Services and/or send us a request at support@fitgrid.com
5. that we delete your account. If you continue to use the Services after we change this Agreement, you consent to be bound by the Agreement, as amended.
Access to Services
1. Access to Services. In addition to our rights set forth in Section 9.4, we reserve the right, in our sole discretion, at any time, and without giving you prior notice to (a) change, modify, suspend or discontinue the Services, any portion, features, components or function of the Services and any Content; (b) restrict, suspend or terminate your access to any part of the Services (c) deactivate your account and delete all related information and files in your account. Notwithstanding the above, we have no obligation to update or enhance the Services or to produce or release new versions of any Services. We will not be liable to you or any third party for taking any of these actions and we will not be limited to the remedies above if you violate this Agreement, unless we terminate your account without cause, in which case your sole recourse is a pro rata refund of any portion of your monthly subscription fee which has not yet accrued.
2. Third Party Offerings. Although the Services may allow you to access to or use of Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply FitGrid’s endorsement of or affiliation with the provider. FitGrid does not control Third Party Offerings and will have no liability to you in connection with any Third Party Offerings. FitdGrid 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 Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS.
3. Additional Third Party Content. In addition to Third Party Offerings mentioned above, we may provide third party content (including advertising) or link to third party websites on the Services. Because the Services contain content that you and other users provide us, advertising may sometimes appear near your content. We do not endorse or evaluate third party content and websites and we are not responsible for third parties’ actions or omissions. You should review third parties’ Terms of Service and privacy policies before you use their services. ACCESS AND USE OF LINKED SITES, INCLUDING THE INFORMATION, MATERIAL PRODUCTS AND SERVICES ON LIKED SITES IS SOLELY AT YOUR OWN RISK. Sometimes promotional plans are offered in conjunction with the provision of third party products and services. We are not responsible for the products and services provided by such third parties, and use of such products and services is at your own risk. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found through our Services are solely between you and such advertiser. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE WEBSITE OR APPS. In certain instances, you may be able to connect and/or link your account to certain third party social media sites, including Facebook. 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 OTHERS, INCLUDING THE SOCIAL MEDIA SITE (IN ACCORDANCE WITH YOUR PRIVACY SETTINGS ON SUCH SOCIAL MEDIA SITE). IF YOU DO NOT WANT INFORMATION ABOUT YOU TO BE SHARED IN THIS MANNER, DO NOT CONNECT OR LINK YOUR ACCOUNT TO ANY SOCIAL MEDIA SITE. Please see our Privacy Policy for further information.
4. Support Services. As part of the Services you have access to FitGrid’s standard e-mail support service at support@fitgrid.com.
5. The FitGrid Network. When you subscribe to our Service, you/your business will automatically be listed on FitGrid’s online platform (the “FitGrid Network”).
6. Trial and Beta Services. FitGrid may in its sole discretion offer trial services or beta services from time to time at no charge 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.
Your Responsibilities.
1. Liability for Activity Under Your Account. You are responsible for all activity occurring under your account. If you are a Studio, you will ensure that your Instructors and Administrators (“Personnel”) comply with all the provisions of this Agreement and any applicable local, state and national laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and Personnel, and any act or omissions of any Personnel that does not comply with this Agreement will be deemed a breach of this Agreement by you.
2. Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of the Services, and notify FitGrid promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
3. Restrictions on Use. You will not, and you will ensure that your Personnel does not:
  1. Upload or transmit to the Services any material that infringe on any patent, trademark, trade secret, confidentiality, copyright, privacy or other rights of another, are unlawful, threatening, libelous, defamatory, abusive, obscene, violent, patently offense, discriminatory, promote racism, bigotry or harm, that you do not have the right to make available or that we deem otherwise objectionable in our sole discretion (including but not limited to uploading or transmitting User Submissions that contain nudity, weapons, violence or drugs);
  2. Harass, threaten, defame, stalk, abuse or harm another person through the Services (including sending unwelcome communications) or engage in illegal activities or encourage conduct that would constitute a criminal offense or give rise to civil liability;
  3. Publish inaccurate information in the designated fields on the profile or account form (e.g., do not include a link or an email address in the name field, submit a telephone number in the “title” field, etc.).
  4. Upload a profile image that is not your likeness or a head-shot photo;
  5. Use or attempt to use another’s account, create a false identity, use a pseudonym, impersonate or misrepresent your relationship with any person or entity on the Services;
  6. Interfere with or disrupt the integrity or performance of the Services or the data contained therein, interfere with others using the Services or otherwise disrupt the Services;
  7. Share information of non-users on the Service without their consent
  8. Access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services
  9. Transmit, collect, or access personally identifiable information about other uses obtained from the Services except as the owner of such information may expressly permit through the Services or otherwise;
  10. reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by FitGrid in the provision of the Services
  11. use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services
  12. Upload or transmit any material through the Services that contain software viruses, spyware, worms, or any other harmful computer code, files, scripts, agents, or programs
  13. Advertise or promote goods or services without our permission (including sending “junk mail,” “spam, “chain letters, “pyramid schemes,”) or any other form of solicitation, or offer any contest, giveaway or sweepstakes.
  14. Access the Services using any interface other than ours or attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement
  15. Restrict or inhibit any other person or entity from using the Services
  16. Maintain any link to the Services that we ask you to remove, in our sole discretion.
  17. Frame or mirror any portion of the services, or otherwise incorporate any portion of the Services into any product, or otherwise simulate the appearance or function of the Services or falsely suggesting a relationship between us and any third party;
  18. Imply or state, directly or indirectly, that you are affiliated with or endorsed by us;
  19. Remove any copyright, trademark or other proprietary rights notice from the Services
  20. Remove, modify, disable, block or otherwise impair any advertising in connection with the Services;
  21. Use, copy adapt, modify, systematically download, store or create derivative works of the Services, Content or third party User Submissions for any commercial purposes including selling or monetizing your access to the Services, Content or third party User Submissions.
  22. Attempt to or actually override any security component included in our Services, including accessing any portion that we have not authorized you to access.
  23. License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates as permitted herein
  24. otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
4. Registration Information. You agree that the registration information that you provide to us to set up an account will be true, accurate, current and complete and that you will keep it up to date at all times. You agree to maintain only one account with us at a time. You are responsible for maintaining the confidentiality of your password and may not permit anyone else to use your account. Any information you submit to us is at your own risk of loss. You are responsible for anything that happens through your account. If you have reason to believe that someone is using your account without your permission, you should contact us at support@fitgrid.com immediately. We are not responsible for any loss or damage resulting from unauthorized use.
Fees and Payment.
1. FitGrid may reject or require that you change any user name or password under your account. User names and passwords are for your personal or internal business use only and may not be shared with any third party, including a competitor of FitGrid. You, and not FitGrid, are responsible for any use or misuse of user names or passwords associated with your account.
2. Software Services and Fees. Fees for the Services (“Subscription Fees”) are set forth on our website at FitGrid.com/pricing as may be updated by FitGrid from time to time, or as otherwise stated in any Partner Agreement.
3. Payment Terms. You agree to pay FitGrid the Subscription Fees and any other applicable fees stated in any Partner Agreement or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated in a Partner Agreement, fees must be paid/your credit card will be charged in advance of each billing period. You will provide FitGrid with valid and updated credit card information or another form of payment acceptable to FitGrid. If you provide credit card information, you represent that you are authorized to use the card and you authorize FitGrid to charge the card for all payments hereunder. By submitting payment information, you authorize FitGrid to provide that information to third parties for purposes of facilitating payment. You agree to verify any information request by FitGrid for purposes of acknowledging or completing any payment. You may edit your Payment Method information by signing into your account and editing it under the “Credit Card” tab. If a payment is not successfully settled, due to expiration, insufficient funds or otherwise, and you do not edit your Payment Method information or cancel your account (see Cancelling Your Account, below), you will still be responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated, including in the event you attempt to create a new account. If we cannot charge your account, we reserve the right, but are not obligated, to terminate your access to the Services or any portion thereof.
4. Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus the costs of collection. Any amount not received by FitGrid within thirty (30) days after the applicable due date will be deemed a material default under this Agreement and FitGrid will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 9.2.
5. Changes in Fees. Upon notice to you, FitGrid may increase any fees specified in a Partner Agreement provided the increase will not become effective until the expiration of the current Subscription Term. FitGrid may increase any fees that are not specified in a Partner Agreement at any time, with or without notice to you.
6. Payment Errors. If you believe a payment has been processed in error, you must provide written notice to FitGrid within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by FitGrid within such thirty (30) day period, the payment will be deemed final.
7. Taxes. Fees do not include any 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 this Agreement. If FitGrid is legally required to pay or collect any Taxes on your behalf, FitGrid will invoice you and you will pay the invoiced amount.
8. Cancelling Your Account. You may cancel or suspend your account at any time by emailing us at support@fitgrid.com but your obligation to pay fees through any month of the Subscription Term continues. ALL FEES ARE NON-REFUNDABLE - we do not offer refunds for any reason, including for lack of usage or dissatisfaction. You acknowledge and agree that cancellation of or deletion of your account (which you must request us to do by emailing us at support@fitgrid.com is your sole recourse if you have any dissatisfaction, issue or concern related to the Services.
9. Other Fees. Other Third Party Fees. You are responsible for all third party charges and fees associated with connecting with and using our Services, including internet service provider fees, telephone and equipment charges (such as data use charges), sales tax and any other fees necessary to access our Services.
Intellectual Property Rights.
1. FitGrid Property. FitGrid owns all right, title and interest in and to the Services, the FitGrid Data, FitGrid Marks and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, FitGrid reserves all rights, title and interest in and to the Services, the FitGrid Data, the FitGrid Marks and Aggregated Data, including, without limitation, all related intellectual property rights. You agree not to display or use any FitGrid Marks in any manner without FitGrid’s express prior written permission. Any trademarks, service marks and logos associate with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks. As between you and us, we retain all right, title and interest in the Content and reserve all rights to the Services and Content.
2. License Grant to You. Subject to the terms and conditions of this Agreement or if applicable, a Partner Agreement, FitGrid hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable license and right to use the Services during the Subscription Term and solely for your internal business purposes.
3. License Grant to FitGrid. You hereby grant to FitGrid a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license (a) to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, your Personnel or Customers relating to the Services or FitGrid business; and (b) to use your business name(s), trademarks, service marks or logos (collectively, “Your Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with FitGrid’s business. Other than those rights specifically granted to FitGrid herein, all right, title and interest in and to Your Marks are expressly reserved by you.
Data Ownership and Use.
1. Your Data. As between you and FitGrid, you own all right, title and interest in Your Data. You hereby grant to FitGrid a perpetual, nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to host, store, use, copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data for the purposes of providing, improving and developing FitGrid’s products and services and/or complementary products and services of our partners. You represent and warrant to FitGrid that you have all rights necessary to grant the licenses in this Section 6.1, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
2. FitGrid Data. Notwithstanding Section 6.1, all right, title and interest in any data or information collected by FitGrid independently and without access to, reference to or use of any of Your Data, including, without limitation, any data or information FitGrid obtains about Customers through the FitGrid Apps (whether the same as Your Data or otherwise), will be solely owned by FitGrid (collectively, “FitGrid Data”).
3. Aggregated Data. FitGrid will own all Aggregated Data. You agree that nothing in this Agreement will prohibit FitGrid from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any Customers.
4. Personal Information. Our Privacy Policy governs how we collect and use personal information that is submitted through the Services. By accessing or using the Services, you agree to that you have read and accept our Privacy Policy.
5. Protection and Security. During the Subscription Term, FitGrid will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data.
6. Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
7. Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of your business and Personnel. You acknowledge and agree that FitGrid has no obligation whatsoever to resolve or intervene in such disputes.
User Submissions
1. Some of our Services may allow you and other users to submit text, photos, images, health and fitness preferences, interests, ideas, suggestions, feedback, documents, commentary or other information (“User Submissions”). You alone are responsible for User Submissions you post. We do not guarantee that User Submissions will be private or confidential even if the User Submission is in a password-protected area. You should think carefully about what you upload to the Services and should not provide User Submissions that you don’t want to be made public and you should assume that any person (whether or not a user of the Services) may read your User Submissions. User Submissions are displayed for informational purposes only and reflect the opinions of the person making the submission. User Submissions are not controlled by and do not reflect the opinion of FitGrid. You bear all responsibility for your User Submissions, 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 Submissions do not and will not violate this Agreement and we may use them in accordance with the above license without any compensation to you.
2. Our License to User Submissions. We do not claim ownership of your User Submissions, but when you provide User Submissions, you grant us, our affiliates, partners, sublicensees, and assignees of the Services a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free license to use, copy, archive, edit, translate, create derivative works of, make available, distribute, sell, commercialize, display, perform, transmit, broadcast and in any other way exploit those User Submissions, including for marketing, promoting or improving the Services, and any names, voices, likenesses and other identifying information of persons that may be part of those User Submissions, in any form, media software or technology of any kind now known or developed in the future.
3. Our Right to Remove User Submissions. We may refuse or remove a User Submission without notice to you at our sole discretion but have no obligation to monitor or pre-screen any User Submissions, including their accuracy, although we reserve the right to do so. You agree that we will not be liable for User Submissions, including but not limited to any errors or omissions, or any loss or damage resulting from the use of any User Submissions.
4. Deleted Submissions. If a User Submission is deleted, it may still exist in our backup copies. If your User Submission was shared with third parties, including other users, those third parties may still have retained copies of your User Submissions and neither we nor our affiliates have any responsibility for any uses of your User Submissions that they might make. We retain the license above regardless of any deletion of User Submissions.
5. Waiver of Rights With Respect to Others’ User Submissions. You understand that when you use the Services you may be exposed to User Submissions from a variety of sources and that we do not endorse and are not responsible for the accuracy, usefulness, safety or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are 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 SUBMISSIONS.
Confidential Information
1. A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party's prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 8 will restrict FitGrid with respect to FitGrid Data or Aggregated Data.
Term, Termination, and Suspension
1. Term. Unless otherwise specified in a Partner Agreement, the term of this Agreement will be month to month (“Subscription Term”). The Subscription Term commences on the date you accept this Agreement and will automatically renew on a monthly basis until either Party terminates in accordance with this Agreement. Except as set forth in a Partner Agreement, either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the relevant Subscription Term. Unless otherwise specified in Partner Agreement, Subscription Fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term commences.
2. Termination for Cause. FitGrid may terminate this Agreement, effective immediately upon notice to you, if you are in material breach of this Agreement. In the event of a termination pursuant to this Section 9.2, in addition to other amounts you may owe FitGrid, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to FitGrid for the period prior to the effective date of termination.
3. Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) your Partner Agreement will automatically terminate and be of no force or effect; (b) you and your Personnel will have no right to continue use of the Services and will cease accessing and/or using the Services; (c) except as specified in the following paragraph, FitGrid will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.2, 2.3, 2.6, 3, 4 (other than Section 4.1), 5, 6, 8, 9.2, 9.3, 10.1, 10.2, 11, 12, 13, 14, 15, 16.
4. Right to Terminate or Suspend Services. We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of 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 law.
Disclaimers
THE SERVICES 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 SERVICES AND/OR RELATED DOCUMENTATION. FITGRID DOES NOT WARRANT THAT YOUR USE OF THE 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 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 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.
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 Services, Content and User Submissions (including without limitation use of your account, whether or not authorized by you, and claims arising from your Affiliates, Customers and Personnel) (b) any actual or alleged breach by you or your Personnel of any provisions of this Agreement; (c) any access to or use of the Services by you, your Customers or your Personnel; (d) any actual or alleged violation by you, your Customers or Personnel of the intellectual property, privacy or other rights of a third party; and (e) any dispute between you and another party regarding ownership of or access to Your Data.
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 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 one of our Apps, 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 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.
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 in the Services 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 Agent
  YourGuru, Inc.
  33 West 17th Street
  4th Floor
  New York, New York 10011
  support@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:
  1. Identification of the copyrighted work or works claimed to have been infringed
  2. 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)
  3. Your contact information, such as an address, telephone number and email address
  4. 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
  5. 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
  6. A physical or electronic signature of the person authorized to act on behalf of the owner of the infringed copyright
  7. Identification of the material removed or disabled and location where it appeared before removed or disabled
  8. 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
  9. 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
  10. 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:
  1. Identification of the material removed or disabled and location where it appeared before removed or disabled
  2. 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
  3. 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
  4. A physical or electronic signature of the alleged infringer
5. 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 Site or Services.
Miscellaneous
1. Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of New York without regard to conflicts of laws principles. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, if applicable. Notwithstanding the above, you agree that FitGrid shall still be allowed to apply for injunctive remedies (or an equivalent type of equitable relief) in any court of competent jurisdiction. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES OR THE CONTENT MUST BE FILED WITHIN 1 YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED AND WAIVED.
2. Mandatory Informal Dispute Resolution. Unless otherwise provided in a Partner Agreement, if you have any dispute with FitGrid arising out of or relating to this Agreement, you agree to notify FitGrid in writing with a brief, written description of the dispute and your contact information, and FitGrid will have thirty (30) days from the date of receipt within which to attempt resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
3. Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT 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 SECTION 16.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND FITGRID AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures. Any arbitration hearing will be held in New York, NY. The applicable governing law will be as set forth in Section 16.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and the Partner Agreement, as applicable, and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
4. Entire Agreement. Other than a Partner Agreement, this Agreement, and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and this Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between FitGrid, on the one hand, and you, on the other hand. In the event of a conflict between a Partner Agreement and this Agreement, the Partner Agreement will control. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision and the remaining provisions of this Agreement shall remain in full force and effect. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
5. Waiver and Severability. No waiver of any provision of this Agreement by FitGrid will be effective unless in writing and signed by FitGrid. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
6. Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without FitGrid’s prior written consent. FitGrid may assign, transfer or sublicense any or all of FitGrid’s rights or obligations under this Agreement without restriction.
7. Notices. For purposes of Service messages and notices about the Services and the Content, including changes to pricing and modifications of this Agreement, we may place a banner notice across our website. Alternatively, for these types of notices and any legal notice we give to you, you agree that we may send you an email to an email address associated with your account, even if we have other contact information. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical notices and other information about the Services. Except as otherwise specified in the Agreement, any notices to FitGrid under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to the address listed in Section 15.1.
8. Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving FitGrid’s or your Personnel, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
9. Electronic Communications and Signatures. You acknowledge and agree that by clicking on any button labelled “CONFIRM PURCHASE,” “PLACE ORDER,” “I AGREE,” “I ACCEPT” or such similar notice or links as may be designated by us to accept these Terms including the Privacy Policy (including “By Signing Up, I agree to these Terms of Service and Privacy Policy, you are submitting to a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms, including the Privacy Policy. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar laws, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SERVICES. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
10. Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and FitGrid.
11. No Injunctive Relief. YOU ACKNOWLEDGE AND AGREE THAT IF YOU INCUR ANY DAMAGES THAT ARISE OUT OF THE FITGRID PARTIES’ ACTS OR OMISSIONS, THE DAMAGES, IF ANY, ARE NOT IRREPARABLE AND ARE SUFFICIENT AND YOU ARE NOT ENTITLED TO AN INJUNCTION OR OTHER EQUITABLE RELIEF RESTRICTING OPERATION OF THE SERVICES OR ANY OTHER SERVICE, PROPERTY, PRODUCT, PROGRAM, CLASS OR OTHER CONTENT OWNED OR CONTROLLED BY FITGRID PARTIES.
Definitions.
For the purposes of this Agreement, the following capitalized terms will have the meanings set forth for each of them below:

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with you, and that has been designated to receive Services under this Agreement. “Control” for purposes of this definition means the power to direct or cause the direction of the management and policies of the subject

“Aggregated Data” means anonymized, aggregated data derived by or through the operation of the Services that is created by or on behalf of FitGrid and that does not reveal any personally identifying information.

“Apps” means any mobile applications through which FitGrid makes the Services available.

“Cardholder Data” means credit card numbers, expiration dates, billing addresses, and cardholder names as entered by you.

"Confidential Information" means (a) any software utilized by FitGrid in the provision of the Services and its respective source code; (b) each Party’s business or technical information, including but not limited to the Documentation, information relating to software plans, designs, costs, prices and names, business opportunities, personnel, research, development or know-how that is designated by the disclosing Party as “confidential” or “proprietary” or the receiving Party knows or should reasonably know is confidential or proprietary; and (c) any special pricing or other non-standard terms agreed to by the Parties in Partner Agreement or other separate written document.

“Content” means the Apps, website, all downloadable software, content photographs, text graphics, logos, trademarks, service marks, layouts, designs, interfaces, software, functionality, data, displays, video and audio, design, selection and arrangement of any of the foregoing and other content associated with or made available through the Services.

“Documentation" means FitGrid’s online user guides, documentation, Frequently Asked Questions, and help and training materials, as may be updated by FitGrid from time to time, accessible at www.FitGrid.com, and any other materials provided by FitGrid as part of the Services.

“FitGrid Apps” means the consumer-facing, downloadable mobile app made available by FitGrid known as the “FitGrid App” (and its successor products) and the Instructor-facing, downloadable mobile app made available by FitGrid to Instructors known as the “FitGridPro App” (and its successor products).

“FitGrid Marks” means FitGrid’s service marks, logos, and product and service names, including, without limitation FitGrid, FitGridPro, and “Cultivate Devotion” (the “FitGrid Marks”)

“Partner Agreement” means a separate Agreement that specifies the Services purchased hereunder, the applicable fees, and other terms as agreed to between the Parties. If a Partner Agreement indicates that any Affiliates will be receiving Services hereunder, each of them will be bound by the terms of this Agreement as if they were an original party hereto.

“Services” means the Website and the Apps. “Services” excludes Third Offerings and User Submissions.

“Third Party Offerings” means any third-party products, applications, websites, implementations or services, including loyalty programs, that the Services link to, or that interoperate with or are used in conjunction with the Services.

“Website” means www.FitGrid.com and any other websites through which FitGrid makes the Services available.

“Your Data” means any data, information or material provided or submitted by you and Affiliates to the Services. If you are a Studio, Your Data may include Customer and Instructor Data and Cardholder Data, but excludes Aggregated Data.
How to Contact Us
If you have questions or comments about these Terms, please contact us at support@fitgrid.com.

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