fitbookr terms of use


STATEMENT OF TERMS OF USE

 

Date of last revision:  April 4, 2014

 

This Statement of Terms of Use (“TOU” or “Terms”) governs our relationship with users and others who interact with fitbookr (the “Company” or “we” or “us”). By using or accessing fitbookr, including www.fitbookr.com (the “Website”), you agree to these Terms. If you do not agree, please do not use fitbookr Services.

 

1.   Privacy

 

Your privacy is very important to us. We have designed our Privacy Policy to make important disclosures to you about how we collect and use the information you post on fitbookr. We encourage you to read the Privacy Policy at www.fitbookr.com/privacy, and to use the information it contains to help make informed decisions.

 

2. Sharing Your Content and Information

 

You can control how you share the content you post through your browser’s privacy settings. In order for us to use certain types of content and to provide you with fitbookr, you agree to the following:

 

A.   For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with fitbookr ("IP License").

 

B.    When you delete IP content, it is deleted in a manner similar to emptying the recycle bin on a computer. You understand that removed content may persist in backup copies for a reasonable period of time (but will not be available to others).  The IP License granted by you continues for so long as the content you have provided remains available to fitbookr on-line or in backup files.

 

C.    We always appreciate your feedback or other suggestions about fitbookr, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

 

3. Third Party Content, Sites and Services

 

A.   The fitbookr site and Content available through the Service may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of fitbookr, including web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole. 

 

B.    Your interactions with organizations and/or individuals found on or through the Service, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals.  You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. 

 

C.    You agree that fitbookr shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such interactions. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that fitbookr is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release fitbookr, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature (including attorneys’ fees), known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and / or our service. If you are a California resident, you waive California Civil Code Section 1542, which says:

 

"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." 

 

4. Notification of Claims of Infringement

 

A.   If you believe that your work has been copied in any way, on the fitbookr site, that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, with respect to the fitbookr site, please notify fitbookr's agent for notice of claims of copyright or other intellectual property infringement ("Agent"), at legal@fitbookr.com.

 

a)     Please provide our Agent with the following Notice:

 

                                               i.     A statement by you identifying the material on the fitbookr site that you claim is infringing, with enough detail so that we may locate it on the website.  If multiple copyrighted works are covered by a single notification, a representative list of such works;

 

                                             ii.     A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

 

                                            iii.     A statement by you declaring under penalty of perjury that (1) the above information in your Notice is accurate, and (2) that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner;

 

                                            iv.     Your name, address, telephone number, and email address; and

 

                                             v.     Your physical or electronic signature.

 

b)    Fitbookr will remove the infringing posting(s), subject to the procedures outlined in the Digital Millennium Copyright Act (DMCA).

 

B.    Counter-Notifications: If fitbookr removes or disables your access to content in response to an infringement notice, and you feel that your material does not constitute infringement, you may provide fitbookr with a counter notification by written communication to legal@fitbookr.com.

 

a)     Please provide our Agent with the following Notice:

 

                                              i.     A statement by you identifying the material on the fitbookr site that was claimed to be infringing, with enough detail so that we may locate it on the website before its removal.  If multiple copyrighted works are covered by a single counter-notification, a representative list of such works;

 

                                             ii.     A statement by you that you consent to personal jurisdiction of the courts located in San Francisco County, California for adjudication of the matter;

 

                                            iii.     A statement by you declaring under penalty of perjury that the information in your Counter-Notice is accurate and that you are the owner of the copyright interest involved or that you are authorized to act on behalf of that owner and that the material was removed in error or by misidentification; and

 

                                            iv.     Your name, address, telephone number, and email address; and

 

                                             v.     Your physical or electronic signature.

 

b)    Please note that you may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is or is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking the advice of an attorney.

 

5. Safety

 

We do our best to keep fitbookr safe, but we cannot guarantee it. We need your help in order to do that, which includes the following commitments:

 

A.   You will not send or otherwise post unauthorized commercial communications to users (such as spam).

 

B.    You will not collect users' information, or otherwise access fitbookr, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission.

 

 

C.    You will not upload viruses or other malicious code.

 

D.   You will not solicit login information or access an account belonging to someone else.

 

E.    You will not bully, intimidate, or harass any user.

 

F.    You will not post content that is hateful, threatening, pornographic, or contains nudity, or graphic or gratuitous violence.

 

G.   You will not use fitbookr to do anything unlawful, misleading, malicious, or discriminatory.

 

H.   You will not facilitate or encourage any violations of this Statement.

  

6. Emergency

 

This Website was not designed to deal with medical emergencies. If you suspect that you or someone you know has a medical emergency, please CALL 911, an equivalent emergency number in your country, or your doctor immediately.

 

7. Fitbookr Does Not Provide Medical Advice

 

A.   The contents of fitbookr, such as text, graphics, images, information obtained from fitbookr licensors, and other material contained on fitbookr ("Content") are for informational purposes only. The Content is not intended to provide, or to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on the fitbookr.

 

B.    If you think you may have a medical emergency, call your doctor or 911 immediately. Fitbookr does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned on the Site. Reliance on any information provided by fitbookr, its employees, others appearing on the Site at the invitation of the Site, or other visitors to the Site is solely at your own risk.

 

8. Registration and Account Security

 

Fitbookr users provide their real names and information when they register, and we need your help to keep it that way. A screen name for use on the site that is different from your real name may be selected at the time of registration. The real name may be kept private from site users by selecting this feature in the settings.

 

Here are some commitments you make to us relating to registering and maintaining the security of your account:

 

A.   You will not provide any false personal information on fitbookr, or create an account for anyone other than yourself without permission.

 

B.    You will not use fitbookr if you are under 18.

 

C.    You will not use fitbookr if you are located in a country embargoed by the U.S., or are on the U.S. Treasury Department's list of Specially Designated Nationals.

 

D.   You will not use fitbookr if you are a convicted sex offender.

 

E.    You will keep your contact information accurate and up-to-date.

 

F.    You will not share your password, let anyone else access your account, or do anything else that might jeopardize the security of your account.

 

G.   You will not transfer your account to anyone without first getting our written permission.

 

9. Protecting Other People's Rights

 

We respect other people's rights, and expect you to do the same by adhering to these rules:

 

A.   You will not post content or take any action on fitbookr that infringes someone else's rights or otherwise violates the law.

 

B.    We can remove any content you post on fitbookr if we believe that it violates this Statement.

 

C.    We will provide you with tools to help you protect your intellectual property rights. To learn more, see Section 4 of this document, entitled “Notification of Claims of Infringement.”

 

D.   If we remove your content for potentially infringing on someone else's copyright, and you believe we removed it by mistake, we will provide you with procedures to appeal.

 

E.    If you repeatedly infringe others’ intellectual property rights, we will disable your account when appropriate, at our discretion.

 

F.    You will not use our copyrights or trademarks (including fitbookr, the fitbookr and fitbookr Logos) without our written permission.

 

G.   If you collect information from users, you will: obtain their consent, make it clear you (and not fitbookr) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it.

 

H.   You will not post anyone's identification documents or sensitive financial information on fitbookr.

 

10. Mobile

        

When accessing our Website via mobile products please be aware that your carrier's normal rates and fees, such as text messaging and data fees, will still apply. In the event you change or deactivate your mobile telephone number, you will need to update your account information on fitbookr within 48 hours to avoid having your messages sent to the person who acquires your old number.

 

11. Limitations on Service

 

You acknowledge that fitbookr may establish limits concerning use of the Service, including the maximum number of days that Content will be retained by the Service, the maximum number and size of postings, email messages, or other Content that may be transmitted or stored by the Service, and the frequency with which you may access the Service. You agree that fitbookr has no responsibility or liability for the deletion or failure to store any Content maintained or transmitted by the Service. You acknowledge that fitbookr reserves the right at any time to modify or discontinue the Service (or any part thereof) with or without notice, and that fitbookr shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

 

12. Payments

 

Fitbookr uses Stripe as its third party provider for payment services.  When purchasing sessions, Users and Personal Trainers are bound by Stripe’s Terms of Service (https://stripe.com/us/terms) and Privacy Policy (https://stripe.com/us/privacy).  You consent to authorize fitbookr and Stripe to share any information and payments instructions you provide with Third Party Service Providers to the minimum extent required to complete your transactions.

  

13. Amendments

 

A.   We can change this Statement so long as we provide you notice through fitbookr (unless you opt-out of such notice) and an opportunity to comment.

 

B.    For changes to sections relating to payments and advertisers, we will endeavor to give you a minimum of three days notice. For all other changes we will endeavor to give you a minimum of seven days notice.

 

C.    We can make changes for legal or administrative reasons without notice and without opportunity to comment.  We will generally try to notify you, but have no obligation to do so.

 

14. Termination

 

If you violate the letter or spirit of the Terms of Use, we reserve the right to stop providing all or part of fitbookr to you. We will generally try to notify you, but have no obligation to do so. You may also delete your account at any time.

 

In all such cases, the Service may be terminated with respect to your use, but some provisions of this Statement will still apply.

 

15. Severability

 

If any provision of the TOU is found by a court of competent jurisdiction to be invalid, you nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TOU remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising by you out of or related to use of the Service or the TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

16. Violation of Terms and Liquidated Damages

 

Please report any violations of the TOU by emailing: legal@fitbookr.com.

 

Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.

 

You understand and agree that, because damages are often difficult to quantify, if it becomes necessary for fitbookr to pursue legal action to enforce these Terms, you will be liable to pay fitbookr the following amounts as liquidated damages, which you accept as reasonable estimates of fitbookr's damages for the specified breaches of these Terms:

 

A.   If you post a message that (1) impersonates any person or entity; (2) falsely states or otherwise misrepresents your affiliation with a person or entity; or (3) includes personal or identifying information about another person without that person's explicit consent, you agree to pay fitbookr one thousand dollars ($1,000) for each posting of each such message.  This provision does not apply to Content that constitutes lawful non-deceptive parody of public figures.

 

B.    If fitbookr establishes limits on the frequency with which you may access the Service, or terminates your access to or use of the Service, you agree to pay fitbookr one hundred dollars ($100) for each message posted in excess of such limits or for each day on which you access fitbookr in excess of such limits, whichever is higher.

 

C.    If you send unsolicited email advertisements to fitbookr email addresses or through fitbookr computer systems, you agree to pay fitbookr twenty-five dollars ($25) for each such email.

 

D.   If you post Content in violation of the TOU, other than as described above, you agree to pay fitbookr one hundred dollars ($100) for each Item of Content posted, each time it is posted.  In its sole discretion, fitbookr may elect to issue a warning before assessing damages.

 

E.    If you are a Posting Agent that uses the Service in violation of the TOU, in addition to any liquidated damages under clause (4), you agree to pay fitbookr one hundred dollars ($100) for each and every Item you post in violation of the TOU.  A Posting Agent will also be deemed an agent of the party engaging the Posting Agent to access the Service (the "Principal"), and the Principal (by engaging the Posting Agent in violation of the TOU) agrees to pay fitbookr an additional one hundred dollars ($100) for each Item posted by the Posting Agent on behalf of the Principal in violation of the TOU.

 

F.    If you aggregate, display, copy, duplicate, reproduce, or otherwise exploit for any purpose any Content (except for your own Content) in violation of these Terms without fitbookr's express written permission, you agree to pay fitbookr three thousand dollars ($3,000) for each day on which you engage in such conduct.

 

Otherwise, you agree to pay fitbookr's actual damages, to the extent such actual damages can be reasonably calculated. Notwithstanding any other provision of these Terms, fitbookr retains the right to seek the remedy of specific performance of any term contained in these Terms, or a preliminary or permanent injunction against the breach of any such term or in aid of the exercise of any power granted in these Terms, or any combination thereof.

 

17. Disputes

 

A.   You will resolve any claim, cause of action or dispute ("claim") you have with us arising out of or relating to this Statement or fitbookr in a state or federal court located in San Francisco County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in San Francisco County, California for the purpose of litigating all such claims.

 

B.    If anyone brings a claim against us related to your actions or your content on fitbookr, you will indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

 

C.    WE TRY TO KEEP FITBOOKR UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. WE ARE PROVIDING FITBOOKR "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT FITBOOKR WILL BE SAFE OR SECURE. FITBOOKR IS NOT RESPONSIBLE FOR THE ACTIONS OR CONTENT OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "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." WE WILL NOT BE LIABLE TO YOU FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS STATEMENT OR FITBOOKR, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY ARISING OUT OF THIS STATEMENT OR FITBOOKR WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, FITBOOKR'S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

18. Definitions

 

A.   By "fitbookr" we mean the features and services we make available, including through our website at www.fitbookr.com and other media, devices or networks now existing or later developed.

 

B.    By "us," "we" and "our" we mean fitbookr, Inc. and/or its affiliates.

 

C.    By "content" we mean the content and information you post on fitbookr, including information about you and the actions you take.

 

D.   By "post" we mean post on fitbookr or otherwise make available to us.

 

E.    By "use" we mean use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of.

 

19. Other

 

A.   This Statement makes up the entire agreement between the parties regarding Fitbookr, and supersedes any prior agreements.

 

B.    If any portion of this Statement is found to be unenforceable, the remaining portion will remain in full force and effect.

 

C.    If we fail to enforce any of this Statement, it will not be considered a waiver.

 

D.   Any amendment to or waiver of this Statement must be made in writing and signed by us.

 

E.    You will not transfer any of your rights or obligations under this Statement to anyone else without our consent.

 

F.    All of our rights and obligations under this Statement are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.

 

G.   Nothing in this Agreement shall prevent us from complying with the law.

 

H.   This Statement does not confer any third party beneficiary rights.