Terms & Conditions
LAST UPDATED ON October 26, 2015.
THESE TERMS OF SERVICE (“AGREEMENT”) ARE A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND MY FITNESS TOOLBOX (“WE” OR “MY FITNESS TOOLBOX”), THE OWNER AND OPERATOR OF THE WWW.MYFITNESSTOOLBOX.COM WEBSITE (THE “SITE”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE, AND YOUR PURCHASE OF THE SUBSCRIPTIONS AND PRODUCTS SOLD ON THIS SITE. BY ACCESSING AND USING THE SITE, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, THE SITE.
By signing up for a Subscription (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless My Fitness Toolbox if your child breaches or disaffirms any term or condition of this Agreement.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
1 – CHANGES TO SITE; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the site
My Fitness Toolbox may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Subscriptions (both as defined below in Section 3.1). My Fitness Toolbox reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that My Fitness Toolbox uses a third party payment processing service to process orders and bill fees to your credit card.
1.3 – Privacy
PLEASE TAKE NOTICE that My Fitness Toolbox (and its third party service providers) automatically collects various types of information about your visits to our Site, registration for a Subscription, and/or use our Services. In addition to the personal information provided by you in connection with your account registration, we may also collect certain additional information by automated means, such as cookies, and other automated devices.
We may use third-party website analytics tools (such as Omniture, Google Analytics, and Facebook Insights) that collect information about visitor traffic on the Site that help us continue to improve the Site, performance and user experiences.
The types of information we may collect by such automated means include: Information about the devices our visitors use to access the Internet (such as the IP address and the device, browser, domain name and operating system type); URLs that refer visitors to our Site; Dates and times of visits to our Sites; Information on actions taken on our Site (such as page views and site navigation patterns); A general geographic location (such as country and city) from which a visitor accesses our Site; Search terms that visitors use to reach our Site and the webpage that led you to the Site.
2 – PASSWORDS; USE OF SITE
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify My Fitness Toolbox if there is any unauthorized use of your password on this Site or if you know of any other breach of security in relation to this Site.
2.2 – Use of Site; Prohibitions
Subject to your compliance with this Agreement, My Fitness Toolbox hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Site and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed on the Site (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Site and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Site or Content or otherwise attempt to gain unauthorized access to any portion of the Site or Content or any other systems or networks connected to the Site, or to any server of My Fitness Toolbox or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Site or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Site or with any other person’s use of the Site; (d) track or seek to trace any information on any other person who visits the Site; (e) use the Site or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site or Content.
2.3 – Chat Sessions
This space left intentionally blank. We currently do not have chat services available.
3 – TERMS OF SALE
3.1 – Sales of Products and Memberships to End Users Only
My Fitness Toolbox sells fitness and health subscriptions and other nutritional supplies (the “Product(s)”) from the Site to end-user customers who purchase monthly subscriptions to receive the Products (“Subscription(s)”) only for their own personal, non-commercial use. You may not purchase Products or Subscriptions for further distribution or resale or for any other commercial or business purpose. The Subscription and all rights and privileges conferred are personal and non-transferable.
3.2 – Pricing
Pricing for Products and Subscriptions (including any applicable shipping and handling fees) can be found on My Fitness Toolbox’s then-current pricing page located on the Site at: http://www.myfitnesstoolbox.com/how-it-works. The price that we will charge you for the Products and Subscriptions will be the price as posted on the Site on the date you first sign-up for a Subscription to the Site. My Fitness Toolbox reserves the right to change prices for Products and Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 – Refund/Cancellation Policy
3.4 – Payment Methods; Automatic Monthly Membership Renewals and Membership Cancellation Policy
My Fitness Toolbox accepts credit card payments only. You agree to pay all fees charged to your account based on My Fitness Toolbox’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a Subscriptions to the Site. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Subscriptions based on the address that you provide as the shipping address when you register for a Subscriptions, and you authorize My Fitness Toolbox or the third party payment processing service provider that we engage to charge your credit card for any such taxes and fees. All payments shall be made by credit card in advance prior to shipping the Products. If you do not pay on time or if your credit card cannot be charged for any reason, My Fitness Toolbox reserves the right to either suspend or terminate your account and Subscriptions and terminate these Terms of Service. All sales and payments will be in US Dollars.
My Fitness Toolbox and My Fitness Toolbox’s third party payment service provider may receive updated credit card information from your credit card issuer. The disbursement of the updated credit card information is provided to My Fitness Toolbox and My Fitness Toolbox’s third party payment service provider at the election of your credit card issuer. Neither My Fitness Toolbox nor My Fitness Toolbox’s third party payment service provider are responsible for the distribution of your credit card information. It is at the sole election of your credit card issuer. Your credit card issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER:
AUTOMATIC MONTHLY MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH. My Fitness Toolbox will automatically renew your Subscription on each monthly anniversary date of the Subscription and, as authorized by you by checking the box demonstrating your consent for automatic monthly renewal of your Subscription during the sign-up process, we will charge your credit card with the applicable Subscription fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Subscription fee payments. Each Subscription renewal period is for one month.
MEMBERSHIP CANCELLATION. You may cancel your Membership at any time by logging on to your account within MyFitnessToolbox.com. To cancel a membership, please log in to your account on the Site and select the “my subscriptions” then follow instructions towards cancellation. All cancellation requests must be received by the first day of the month. Cancellation requests received after the first of the month shall take effect the following month. If you have any problems, please email firstname.lastname@example.org. My Fitness Toolbox requires a reasonable amount of time to process your Subscription cancellation request. If you cancel your Subscription, you will enjoy your Subscription benefits until the end of the then-current Subscription term, and your Subscription benefits will expire at the end of the then-current Subscription term for which you have paid. You will not be eligible for a prorated refund of any portion of the Subscription fees paid for any unused days of the then-current Subscription term.
3.5 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
3.6 – Pausing and Resuming Shipping
My Fitness Toolbox offers its members the ability to temporarily pause their MFT Subscriptions (“Pause Period”). During the Pause Period, members will remain active members, but they will not receive any MFT Products.
Members who are in a Pause Period may resume receiving MFT Products by logging into their account and Resuming shipping either immediately or on their original bill date. You may email any questions about the Pause Period to email@example.com.
4 – USE OF MOBILE APP
4.1 – Incorporation of Related Terms:
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
4.2 – End-User License:
Subject to these Terms, MFT grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Application for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”). Any use of the Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Application (“Content”) is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, this Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
4.3 – User Information:
The User is, however, solely responsible for the confidentiality and security of User Information sent from or stored on the iOS Device by the Application. The User is also solely responsible for all transactions and activities undertaken by anyone or anything with any My Fitness Toolbox subscription registered in the User’s name, whether authorized or unauthorized. This includes any and all unauthorized purchases made from the My Fitness Toolbox website. The User agrees to immediately notify MFT of any suspected unauthorized transactions associated with the Application or any other breach of security. MFT shall not be responsible for any losses arising from the financial loss or theft of User Information due to unauthorized or fraudulent transactions related to the Application. Users shall be solely responsible for taking precautionary steps to protect User Information stored on the iOS Device, including without limitation password-protecting the iOS Device and employing Apple’s remote-wipe feature.
4.4 – Prohibited Uses:
Use of the Application is limited to the contemplated functionality. The Application shall not be used in any way that,
Harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights);
is unlawful, fraudulent, or deceptive;
Uses technology or other means to access unauthorized content or non-public spaces;
Uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public spaces;
Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Attempts to damage, disable, overburden, or impair MFT servers or networks;
Attempts to gain unauthorized access to a MFT computer network;
Attempts to gain unauthorized access to MFT’ user accounts;
Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
Violates these Terms in any manner; or
Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).
MFT reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Application, including any My Fitness Toolbox Credits, that MFT reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
4.5 – User-Generated Content:
The User may generate content, written or otherwise, while using the Application (“User-Generated Content”). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by MFT (for example, in product marketing campaigns). User grants MFT and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content.
4.6 – Indemnification:
User agrees to indemnify and hold harmless MFT, including its agents, affiliated companies, employees, contractors, directors, and officers, and anyone involved in creating or providing the Application, from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) occurring from or related to the use or misuse of the Application, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. MFT reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.
4.7 – No Warranties:
MFT IS PROVIDING THE APPLICATION AND CONTENT TO THE USER “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR REPRESENTATIONS, EXPRESSED OR IMPLIED. THE USER IS USING THE APPLICATION AT HIS OR HER OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, MFT DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE APPLICATION IS MERCHANTABLE, RELIABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING OR FREE OF DEFECTS OR ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE APPLICATION BY THE USER IS IN COMPLIANCE WITH LAWS, OR THAT USER INFORMATION TRANSMITTED IN CONNECTION WITH THE APPLICATION WILL BE SUCCESSFULLY, ACCURATELY OR SECURELY TRANSMITTED.
4.8 – No Liability:
TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL MFT OR ITS AGENTS OR ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT (A) BE LIABLE TO THE USER WITH RESPECT TO USE OF THE APPLICATION; AND/OR (B) BE LIABLE TO THE USER FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION, OR DEVICE FAILURE OR MALFUNCTION. THE USER’S SOLE REMEDY IS TO CEASE USE OF THE APPLICATION. MFT, ITS AGENTS AND ANYONE INVOLVED IN CREATING OR PROVIDING THIS APPLICATION OR CONTENT SHALL NOT BE LIABLE EVEN IF ANY OF THEM OR ANY AUTHORIZED REPRESENTATIVE OF THEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, UNAUTHORIZED USE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARM.
In the event that applicable law does not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental, consequential or other damages, to the fullest extent permissible by law, MFT, its agents or anyone involved in creating or providing this Application or Content shall not be liable for damages, losses, and/or causes of action exceeding the amount, if any, paid by User for use of the Application or $100, whichever is less.
4.9 – Intellectual Property:
MFT, MY FITNESS TOOLBOX, the My Fitness Toolbox logo, and other MFT trademarks, service marks, graphics and logos used in connection with the Application are trademarks or registered trademarks of DD IP Holder LLC or other companies of MFT (collectively “MFT Marks”). Other trademarks, service marks, graphics and logos used in connection with the Application are the trademarks of their respective owners (collectively “Third-Party Marks”). The MFT Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of MFT or the applicable trademark holder. The Application and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by MFT or the owner of the Content.
4.10 – Severability:
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of MFT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
4.11 – Modification of these Terms:
MFT reserves the right to change or modify these Terms or any other MFT terms, conditions, or policies related to use of the Application (including those identified in this agreement) at any time and at its sole discretion by posting revisions on the My Fitness Toolbox website (http://www.myfitnesstoolbox.com) or within this Application. Continued use of the Application following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of MFT shall have any legal effect as a waiver by MFT of any Terms of this Agreement.
4.12 – Third Party Beneficiary:
User agrees that MFT’ service providers, licensors, or others involved in creating or providing the Application are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
4.13 – Contact Us:
If you have any questions regarding our privacy practices, you can email us at firstname.lastname@example.org.
5 – GIFT CARDS
5.1 – Purchasing and Redemption:
5.2 – Use and Limitations:
5.3 – Risk of Loss:
5.4 – Fraud:
5.5 – Limitation of Liability:
5.6 – Indemnification:
5.7 – Issuer:
5.8 – Amendments:
6 – REFERRALS
6.1 – PRIVACY
6.2 – HOW THE PROGRAM WORKS:
a. Program Participation
b. Eligible Member
c. Personalized Referral Links
d. Making a Referral
e. Qualified Referrals
f. Earning Credits
g. Verified Qualified Referrals
h. Value of Credit
i. Transfer of Credits
6.3 – LIABILITY:
By participating in the Program, both Members and Prospective Members agree:
b. To Defend, indemnify, release and hold harmless the Company, its service providers and their respective parent companies, affiliates and subsidiaries, together with their respective employees, directors, officers, licensees, licensors, shareholders, attorneys and agents including, without limitation, their respective advertising and promotion entities and any person or entity associated with the production, operation or administration of the Program (collectively, the “Released Parties”), from any and all claims, actions, demands, damages, losses, liabilities, costs or expenses caused by, arising out of, in connection with, or related to their participation in the Program (including, without limitation, any property loss, damage, personal injury or death caused to any person(s) and/or the awarding, receipt and/or use or misuse of the Program or any Credit); and
c. To Receive communications from Company from time to time. d. That Company shall not be liable for:
Late, lost, delayed, stolen, misdirected, incomplete, inaccurate, unreliable, garbled or unintelligible registrations, links, communications or affidavits, regardless of the method of transmission;
Data corruption, theft, destruction, unauthorized access to or alteration of account information or other materials;
Any injuries, losses or damages of any kind resulting from acceptance, possession or use of a Credit, or from participation in the Program, that were not reasonably foreseeable to the Company at the relevant time;
Any printing, typographical, administrative or technological errors in any websites or materials associated with the Program; or
Claims, demands, and damages in disputes among users of the Program.
6.4 – DISCLAIMERS:
a. The Company disclaims any liability for damage to any computer system resulting from participating in, or accessing or downloading information in connection with the Program, and reserve the right, in their sole discretion, to cancel, modify or suspend the Program should a virus, bug, computer problem, unauthorized intervention or other causes beyond the Company’s control, corrupt the administration, security or proper play of the Program.
b. The Company shall not be liable to any Member for failure to supply any Credit or any part thereof, by reason of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, threatened terrorist acts, terrorist acts, air raid, blackout, act of public enemy, earthquake, tornado, tsunami, war (declared or undeclared), fire, flood, epidemic, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any other similar or dissimilar cause beyond any of the Released Parties’ control.
c. The Company reserves the right to cancel or suspend the Program should it determine, in its sole discretion, that the administration, security or fairness of the Program has been compromised in any way.
d. Disclaimer of Warranties:
MEMBERS AND PROSPECTIVE MEMBERS EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE PROGRAM IS AT YOUR SOLE RISK, THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND TERMS (COLLECTIVELY, “PROMISES”) OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, PROMISES AS TO PRODUCTS OR SERVICES OFFERED THROUGH THE USE OF THE PROGRAM, IMPLIED PROMISES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE COMPANY MAKES AND GIVES NO PROMISE THAT (i) THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS OBTAINED FROM THE USE OF THE PROGRAM WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; AND (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
6.5 – LIMITATION OF LIABILITY AND INDEMNIFICATION:
a. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE COMPANY, INCLUDING ANY VENDORS AND SERVICE PROVIDERS ASSOCIATED WITH OR ASSISTING IN PROVIDING THE PROGRAM, SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE PROGRAM; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE PROGRAM; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR THROUGH THE PROGRAM; OR (v) ANY OTHER MATTER RELATING TO THE PROGRAM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN PROMISES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
b. TO THE FULLEST EXTENT POSSIBLE BY LAW, THE COMPANY’S, INCLUDING ANY VENDORS AND SERVICE PROVIDERS, MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100 (ONE HUNDRED DOLLARS).
c. IN NO EVENT DOES THE COMPANY EXCLUDE OR LIMIT ITS LIABILITY IN RESPECT OF PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE, FRAUD, OR ANY OTHER LIABILITY THE LIMITATION OR EXCLUSION OF WHICH IS NOT PERMITTED BY LAW.
6.6 – CONDUCT:
a. Prohibited Conduct, Generally.
Members agree not to use the Program to:
Violate applicable law;
Stalk, harass, or harm another individual;
Collect or store personal data about other Members;
Impersonate any person or otherwise misrepresent Member’s identity;
Interfere with, disrupt or violate the Terms and Conditions or servers or networks connected to the Program; or disobey any requirements, procedures, policies, or regulations of such networks;
Interfere with another Member’s use of the Program;
Attempt to gain unauthorized access to the Program, other accounts, computer systems, or networks connected to the Program;
Transmit any file that contains viruses, worms, Trojan horses, or any other contaminating or destructive features;
Conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of others;
Resell, barter, trade, auction or otherwise generate income by providing access to the Program to others;
Submit personal information relating to third parties to the Program without the consent of those third parties.
b. Bulk Distribution (“Spam”).
If a Member provides a Personal Link to a Prospective Member by email, the email must be created and distributed in a personal manner that is appropriate and customary for communications with friends, colleagues and family members. By using a Member’s Personal Link, the Prospective Member represents that he/she has given consent to Company to send Member his/her personal information such as full name and email address.
Bulk email distribution, distribution to strangers, or any other promotion of a Personal Link in a manner that would constitute or appear to constitute unsolicited commercial email or “spam” in the Company’s sole discretion is expressly prohibited and may be grounds for immediate termination of the Member’s account and deactivation of the Personal Link. We have a zero-tolerance spam policy.
The Company has no obligation to monitor the content provided by Members; however, the Company may choose to do so and block any email messages, remove any such content, or prohibit any use of the Program.
c. Fraudulent and Suspicious Behavior
The Company may prohibit a Member from participating in the Program or receiving a Credit, in their sole discretion, if they determine such Member, either directly or indirectly is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices that would in any way annoy, abuse, threaten or harass any other users or representatives of the Company.
Use of any automated system, script, or macro to participate in the Program or generate Qualified Referrals is strictly prohibited and will result in the responsible Member’s disqualification from the Program.
Members may not enter with multiple or fake email addresses or accounts, use fictitious identities or use any system, bot or other device or artifice to participate in the Program or receive a Credit.
The Company reserves the right to disqualify any Member and/or cancel any Credit(s) if they determine a Member has tampered with the operation of the Program or violated these Terms and Conditions.
The Company reserves the right to suspend, disqualify or terminate any Member’s or Prospective Member’s participation in the Program and forfeit any Credits or credits earned if the Member or Prospective Member is found to have engaged in any prohibited conduct or otherwise violated the provisions of this Section 5. If Members have engaged in prohibited conduct, spam or fraudulent or suspicious behavior that undermines or affects the integrity or credibility of the Program, and the Company is unable to find a solution to restore the integrity and credibility of the Program, then the Company may in its sole discretion cancel, change or suspect the Program.
CAUTION: ANY DELIBERATE ATTEMPT TO DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY CONSTITUTE A VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION FROM FURTHER PARTICIPATION IN THE PROGRAM. THE COMPANY RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION, IN THE EVENT OF ANY SUCH ATTEMPT.
7 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that My Fitness Toolbox or its licensors own all legal right, title and interest in and to the Site and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Site and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
My Fitness Toolbox is a trademark of My Fitness Toolbox in the United States. Other trademarks, names and logos on this Site are the property of their respective owners. Unless otherwise specified in this Agreement, all information and screens appearing on this Site, including Content, site design, text, graphics, logos, images and icons, as well as the arrangement thereof, are the sole property of My Fitness Toolbox, Copyright © 2015 My Fitness Toolbox. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner or license.
8 – PRODUCT/IDEA SUBMISSIONS
My Fitness Toolbox and its personnel do not accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to My Fitness Toolbox or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of My Fitness Toolbox’s products, services or marketing strategies might seem similar to ideas submitted to My Fitness Toolbox. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your correspondence says, the following terms shall apply to your Submissions.
You agree that:
Any Submission (including its complete contents) by you to My Fitness Toolbox will automatically become the property of My Fitness Toolbox, without any compensation to you;
My Fitness Toolbox may use or redistribute any Submission and its contents for any purpose and in any way, without any compensation to you;
My Fitness Toolbox has no obligation to review any Submission; and
My Fitness Toolbox has no obligation to keep any Submission confidential, and no confidential relationship may be established by or inferred from any such Submissions to, or the consideration of your Submissions by, My Fitness Toolbox.
9 – THIRD PARTY SITES; INDEMNIFICATION
9.1 – Third Party Web Sites
9.2 – Indemnification
You hereby agree to defend, release, indemnify and hold harmless each of the My Fitness Toolbox Parties (as defined in Section below) from and against, any and all losses, liabilities, damages, and/or claims (including, without limitation, attorneys’ fees and costs) arising from your breach of this Agreement, or otherwise arising from your use or misuse of the Site, Content or Products.
10 – DISCLAIMER OF WARRANTIES
THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. MY FITNESS TOOLBOX, ON BEHALF OF ITSELF AND ITS AFFILIATES, LICENSORS, SUPPLIERS AND THIRD PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, THE “MY FITNESS TOOLBOX PARTIES”): (A)EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B)DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE OR CONTENT WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C)DOES NOT REPRESENT OR WARRANT THAT THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D)DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OF THE SITE, CONTENT OR PRODUCTS IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS IS ENTIRELY AT YOUR OWN DISCRETION AND RISK AND YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF THE SITE, CONTENT, PRODUCTS AND MEMBERSHIPS.
THIS LIMITATION OF REMEDIES IS A PART OF THE BARGAIN BETWEEN YOU AND MY FITNESS TOOLBOX. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FITNESS TOOLBOX OR ANY PERSON ON BEHALF OF FITNESS TOOLBOX SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION 9 SHALL EXCLUDE OR LIMIT THE FITNESS TOOLBOX PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
11 – LIMITATION OF LIABILITY
IN NO EVENT SHALL ANY FITNESS TOOLBOX PARTY BE LIABLE TO YOU, OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, PROPERTY DAMAGE, LOSS OF VALUE OF THE PRODUCTS OR LOSS OF USE OF THE PRODUCTS, WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EVEN IF A FITNESS TOOLBOX PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A FITNESS TOOLBOX PARTY IS FOUND TO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, CONTENT, PRODUCTS OR MEMBERSHIPS, TO THE FULLEST EXTENT PERMISSIBLE BY LAW THE RELEVANT FITNESS TOOLBOX PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID FITNESS TOOLBOX FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; AND (B) THE SUM OF ONE HUNDRED US DOLLARS (US$100).
NOTHING IN THIS SECTION 10 SHALL EXCLUDE OR LIMIT ANY FITNESS TOOLBOX PARTY’S LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH FITNESS TOOLBOX PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
12 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW
12. 1 – Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with My Fitness Toolbox and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Informal Resolution. Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at email@example.com or My Fitness Toolbox, Attn: Customer Service,. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 12.1 govern dispute resolution between us.
Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by My Fitness Toolbox that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and My Fitness Toolbox, and to any of our licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and My Fitness Toolbox, and the dispute 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 Arbitration Rules, and the Terms. 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 My Fitness Toolbox.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and My Fitness Toolbox in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND MY FITNESS TOOLBOX WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Alamance county, North Carolina.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: My Fitness Toolbox, Attn: Legal Department, within 30 days of purchasing a Membership. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to subparagraph xii below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, 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.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with My Fitness Toolbox.
Modification. Notwithstanding any provision in these terms to the contrary, we agree that if My Fitness Toolbox makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the My Fitness Toolbox.
Small Claims Court. Notwithstanding the foregoing, either you or My Fitness Toolbox may bring an individual action in small claims court.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Alamance County, North Carolina for such purpose.
12.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of North Carolina, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
13 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
13.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
13.2 – General Terms
© 2015 My Fitness Toolbox. All Rights Reserved.