National Fitness Campaign and Fitness Court App Terms of Service
Thanks for using the Fitness Court and the Fitness Court App of NATIONAL FITNESS CAMPAIGN, LLC (“NATIONAL FITNESS CAMPAIGN”, “we,” or “us”) and the services we offer. As a user of NATIONAL FITNESS CAMPAIGN (“Customer”, “You”, Your”), these Terms of Service are a legally binding contract between you and NATIONAL FITNESS CAMPAIGN regarding your use of the Service.
Last update: November 20, 2017.
At any time you may request your account be terminated. The schedule for retention or deletion of your account information will be controlled by the laws and regulations as determined by the Service Provider connected to your account.
You agree to obey all laws, rules, and regulations applicable to your use of our Service. In addition to any other requirements or restrictions set forth in this Agreement, you shall not use the Service to access illegal material or perform an illegal act, use the Service to access restricted content, material, or functionality intended for someone other than yourself, use NATIONAL FITNESS CAMPAIGN to assist any illegal activity either online or offline.
You will not, and will not permit any Users nor any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services, Software, Hardware Tokens or any data related to the Services (except to the extent such prohibition is contrary to applicable law that cannot be excluded by the agreement of the parties); modify, translate, or create derivative works based on the Services or Software; share, rent, lease, loan, resell, sublicense, distribute, use or otherwise transfer the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws and intellectual property laws).
INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP
The Service is wholly owned by NATIONAL FITNESS CAMPAIGN. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), Services, software, services, and all other elements of the Service (the “Materials”) provided by NATIONAL FITNESS CAMPAIGN are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of NATIONAL FITNESS CAMPAIGN or our third-party licensors. Except as expressly authorized by NATIONAL FITNESS CAMPAIGN, you may not make use of the Materials. NATIONAL FITNESS CAMPAIGN reserves all rights to the Materials not granted expressly in these Terms.
Except as expressly set forth herein, NATIONAL FITNESS CAMPAIGN alone (and its licensors, where applicable) will retain all Intellectual Property Rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services and/or the Software, which are hereby assigned to NATIONAL FITNESS CAMPAIGN. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. As between the parties, NATIONAL FITNESS CAMPAIGN owns all Performance Data. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or Software, or any Intellectual Property Rights.
WARRANTY DISCLAIMER; REMEDIES; RELEAS
YOU EXPRESSLY AGREE THAT THE SERVICES (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SERVICES SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SERVICES.
TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT YOU POST OR IN ANY MATERIALS YOU SEND USING THE SERVICES, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS (c) ANY PROBLEMS THAT MAY ARISE FROM ANY USE OF THE SERVICE ON YOUR COMPUTERS OR DEVICES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
LIMITATION OF LIABILIT
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL NATIONAL FITNESS CAMPAIGN OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "NATIONAL FITNESS CAMPAIGN") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF NATIONAL FITNESS CAMPAIGN SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF NATIONAL FITNESS CAMPAIGN TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY NATIONAL FITNESS CAMPAIGN TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that NATIONAL FITNESS CAMPAIGN has set its prices, offered its services and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
Full Force and Effect. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
Entire Agreement. We and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing (including email) expressly agreed to by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
Assignment. You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.
Further Assurances. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
Force Majeure. We are not liable for any default or delay in the performance of any of our obligations under this Agreement if such default or delay is caused, directly or indirectly, by forces beyond our reasonable control, including fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for us to perform our obligations hereunder.
Third Party Beneficiaries. NATIONAL FITNESS CAMPAIGN’ affiliates, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.
Titles. The titles of the paragraphs of this Agreement are for convenience only and have no legal or contractual effect.
No Agency. Except as expressly set forth herein, no agency, partnership, joint venture, or employment is created as a result of this Agreement, and you do not have any authority of any kind to bind us in any respect whatsoever.
Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the parties will bear their own costs.
Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of and all parties expressly agree to being subject to personal jurisdiction in the State of California.
Mediation and Arbitration. All disputes arising out of this agreement shall be submitted to mediation. If mediation is not successful in resolving all disputes arising out of this agreement, any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The arbitration hearing shall take place in San Francisco, California, before a single arbitrator. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
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