Last updated November 23rd, 2023
Please read this Terms of Use Agreement (the “Agreement” or these “Terms”) carefully as it applies to your use of online services and digital products of FITT Finder, Inc. (“FITT Finder” or “we” or “us”), including but not limited to the FITT Finder website located at www.fittfinder.com and all subdomains thereof (the “Site”), mobile and other applications offered by FITT Finder and all features, content and products and services thereof, including but not limited to API, software and other downloads (collectively, the “Services”), whether as a guest or a registered user. Your use of the Site and Services is governed by this Agreement regardless of how you access the Site or Services, including but not limited to, through the Internet, Wireless Access Protocol (commonly referred to as “WAP”), a mobile network, or otherwise. FITT Finder and its affiliates, licensors, independent contractors and service providers, and their respective directors, officers, employees, representatives, successors, and assigns, are referred to in this Agreement collectively, with FITT Finder, as the “FITT Finder Entities”.
BY CLICKING ANY ACCEPTANCE BUTTON IN RESPECT OF THESE TERMS, OR BY OTHERWISE USING OR ACCESSING THE SITE OR SERVICES, YOU AGREE TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT, WHICH CONTAINS WAIVERS OF YOUR CLASS-ACTION RIGHTS AND LIMITATIONS ON THE LIABILITY OF FITT FINDER ENTITIES TO YOU. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST DISCONTINUE USE OF THE SITE AND SERVICES. READ THE FOLLOWING USE CONDITIONS AND DISCLAIMERS IN THIS AGREEMENT CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE.
FITT Finder reserves the right to update or make changes to this Agreement from time to time and may provide you with notice of such changes by any reasonable means, including without limitation, by posting the revised version of this Agreement on the Site or in connection with the Services. You can determine when this Agreement was last revised by referring to the “LAST UPDATED” legend at the top of this Agreement. Your access to or use of the Site or Services following changes to this Agreement will constitute your acceptance of those changes. Any changes to this Agreement shall not apply to any dispute between you and FITT Finder arising prior to the date on which FITT Finder posted the revised version of this Agreement incorporating such changes or otherwise notified you of such changes.
FITT Finder provides a platform (the “Platform”) that enables users to search, reserve, schedule, purchase, access, and attend fitness, recreational, and wellness activities and services (“Classes”) offered and operated by fitness studios, gyms, trainers, venues or other third parties (collectively, “Providers”). FITT Finder itself is not a gymnasium, place of amusement or recreation, health club, facility, fitness studio, or similar establishment and does not own, operate or control any of the Classes that are offered at or through such facilities.
Users may access the Platform directly, and/or may be granted access to the Platform by or through certain clients of FITT Finder (“Clients”), including employers, insurance companies and other healthcare or wellness companies.
FITT Finder may also provide or make available other offerings and services related to the Platform, all of which, for avoidance of doubt, shall be deemed part of the “Services” for purposes of this Agreement.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: modify or discontinue the Site or Services, with or without notice; charge fees in connection with the use of the Site or Services; modify or waive any fees charged in connection with the Site or Services; or offer opportunities to some or all users of the Site or Services. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Site or of any Service, content, feature or product, in whole or in part. Your continued access to or use of the Site or Services after such changes will indicate your acceptance of such changes.
This Agreement applies to all persons who access the Site and/or Service and all persons who use the Site and/or Service, regardless of whether such use is of free or paid portions of the Site and/or Service, including users who become registered users or members (referred to herein as “Members”) of the Site, Platform or other Service (including through any Client) and users who are Providers of Classes on or through the Site, Platform or other Service, in each case with respect to all uses of, and activities relative to, the Site and/or Services.
Your indication of your acceptance of this Agreement, whether express (e.g., clicking on an “I AGREE” icon) or implicit (i.e., accessing or using any portion of the Site and/or Service) constitutes your consent to this Agreement. You agree that such acceptance will have the same force and effect as if you had manually signed a paper version of this Agreement. You hereby irrevocably waive any rights that you may have under any applicable law to use or receive physical copies of this Agreement.
When accessing or using certain parts of the Site and/or Services you may be asked to agree that you are subject to any additional terms and conditions posted by us on the Site or otherwise made available to you via the Service that are applicable to such parts of the Site and/or Services (“Additional Terms”), including, without limitation, Additional Terms that are applicable to the use of and access to the Platform by Clients and their Member users. Additional Terms may also include terms posted on the Site and/or Services, including, for example:
• portions of the Site or Service that describe the fees, subscription periods, free trial periods or other specific terms that will apply to certain Paid Services (hereinafter defined);
• portions of applications or registration forms that specify qualifications or other requirements applicable to you as an applicant or registrant; and
• rules, guidelines, manuals, policies and other documents posted on the Site and/or Services relating to proper use of various specific Services.
All such Additional Terms are hereby incorporated by reference into this Agreement. In the event of any conflict between this Agreement and any Additional Terms, the Additional Terms shall prevail with respect to the specific portion of the Site and/or Service with respect to which such Additional Terms apply. In all other cases, the Agreement shall prevail.
Users must be at least 18 years of age to create an account and use the Services. If you are younger than 18 but above the required age for consent to use online services where you live (for example, 13 in the US or 16 in Ireland), you may not set up an account, but you may invite a parent or guardian to open an account and help you enroll in courses that are appropriate for you. If you are below this age of consent to use online services, you may not create a FITT Finder account. If we discover that you have created an account that violates these rules, we will terminate your account.
BY ACCESSING OR USING THE SITE OR SERVICES, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. By accessing, using and/or registering for an account on the Site and/or Services on behalf of any third party (e.g. your employer) you are representing to us that you are an authorized representative of that third party and that your access, use and/or registration of or on the Site and Services on their behalf constitutes their acceptance of this Agreement.
Additional user qualifications may apply to specific Services, including for Members and Clients. There may be more than one category of Member or Client and each category may have unique user qualifications. Additional categories of users may also be designated by FITT Finder with unique qualifications for such users.
You acknowledge and agree that you (and not FITT Finder) are responsible for obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment and services needed to access and use the Site or Services, and paying all charges related thereto.
The quality (e.g., the resolution) of streaming content, as well as the download speed of downloadable content, may be affected by a variety of factors such as your location, the content being streamed or downloaded and the speed of your Internet connection. FITT Finder makes no representation or warranty regarding access to content available through the Site or in connection with Services, including the quality of streaming content and the download speed of downloadable content.
Your ability to access the Site and/or any Services and the quality of your user experience may depend on whether you are using appropriate hardware and/or software to access and use the Site and/or Services. Hardware, software and other technological requirements suggested for optimal use of the Site and Services may be posted within the Site and/or Services, but FITT Finder makes no representation, warranty or guarantee that you will be able to use the Site and Services even if you satisfy such requirements.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Site for any reconstruction of any lost data.
The Site and Services primarily provide users with access to Classes provided by third-party Providers. Such Classes are designed and provided by the Providers offering such Classes. Providers are not employees or agents of FITT Finder. FITT Finder may provide various tools and services to allow Providers to make available their independently developed Classes via the Site and Services as well as to allow Providers to interact with participants, including collecting fees from participants via the Site and Services, however FITT Finder is not responsible for the actions or inactions of any such Providers. Members and other participants in Classes are responsible for any and all charges and fees associated with Classes, including fees charged by the applicable Provider. No FITT Finder Entity shall be responsible for any such fees or charges owing to third parties, including to Providers. Notwithstanding the description of FITT Finder’s relationship with Providers described in this Agreement, FITT Finder reserves the right to change such relationship and/or to have different relationships with different Providers as FITT Finder may determine in its sole discretion, all without giving notice to anyone.
We do not direct or control the day to day activities of the Providers and we thus disclaim any and all responsibility and liability for the actions and activities of Providers and the content and services provided by them via the Site and the Services, including any interactions or communications they may have with users of the Site or Services. Under no circumstances will the FITT Finder Entities be liable for any loss or damage caused by your reliance on any Class or related communications, information or materials provided by Providers, or for your interactions with Providers or participation in any Class. The opinions expressed by Providers reflect solely the opinions of the individuals who submit or express such opinions, and may not reflect the opinions of FITT Finder. Further, when you interact directly with a Provider or other users, you must be careful about the types of personal information that you share. We do not control what Providers or other users do with the information they obtain from other users on the Site or Services.
We reserve the right to deny, cancel and/or withdraw any Class or Provider for any reason in our sole discretion. FITT Finder shall not have and hereby disclaims any liability for rejecting, canceling, or withdrawing any Class or Provider. Each Provider must procure at its sole risk, cost and expense any and all equipment and materials and all information, data, works of authorship or other materials delivered in text, photographic, audio, visual or audiovisual format (“Class Content”) that is reasonably required for such Provider to offer his or her Classes. Without limiting the foregoing, each Provider must provide all software and hardware that is not otherwise made available via the Site and Services and FITT Finder makes no representation or warranty as to what functionalities may be available to support Provider and Classes on the Service. Each Provider also understands that Provider may be required to register for, purchase and use third party services, products and technology in order to offer Classes on the Site and Service, all at Provider’s own risk and expense. Provider understands that additional terms, conditions and fees may apply to Provider’s use of such third party services and Provider shall be solely responsible for compliance with all third party requirements. To the extent applicable, Provider will be responsible for providing all Class Content in a format that can be hosted and streamed via the Site and Services in accordance with the technical specifications provided to Provider by FITT Finder from time to time. Providers acknowledge that FITT Finder may charge fees to, or obtain other benefits, remuneration, or compensation from, other users of the Site and Services, including Clients and Members, for access to the Platform and Classes made available through the Platform, in FITT Finder’s sole and absolute discretion, and in no event shall FITT Finder have any obligation to share any such fees, benefits, remuneration, or compensation with any Provider with respect to any Class available via the Platform unless otherwise agreed by FITT Finder with such Provider in writing.
You must comply with all applicable laws, rules and regulations while accessing or using the Site and/or Services. In addition, we expect users to respect the rights and dignity of others. Your use of the Site and/or Services is conditioned upon your compliance with the rules set forth in this section. You must not:
• Post, transmit, or otherwise make available, through or in connection with the Site or Services, (a) anything that could be (i) threatening, harassing, discriminatory, degrading, hateful or intimidating; (ii) defamatory, fraudulent or otherwise tortious; (iii) obscene, indecent, pornographic or otherwise objectionable; or (iv) related to alcohol, wagering, gambling, tobacco products, ammunition or firearms; (b) anything that could give rise to criminal or civil liability (including any material protected by copyright, trademark, trade secret, right of publicity, or any other proprietary right for which you do not have the express prior consent of the owner of such right or in violation of any contractual, fiduciary or other legal obligation), or that encourages conduct that would constitute a criminal offense; (c) any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is potentially harmful or invasive, or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment; (d) any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme,” investment opportunity or other form of solicitation; or (e) any material, non-public information about a company or any securities or other financial instrument, without the proper authorization to do so.
• Use the Site or Services (a) to defame, abuse, harass, stalk, threaten, harvest or collect personally identifiable information, or otherwise violate the legal rights of others, including rights of privacy or publicity; (b) to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity, or state or imply that we endorse any of your statements or Submissions (as defined below) or Classes; or (c) for any other fraudulent or unlawful purpose.
• Interfere with or disrupt the operation of the Site or Services or the servers or networks used to make the Site or Services available (including by taking any action that imposes an unreasonable or disproportionately large load upon the Site or in connection with the Services or upon such servers or networks) or violate any requirements, procedures, policies or regulations of such servers or networks.
• Restrict or inhibit any other person from using the Site or Services (including by hacking or defacing the Site).
• Use the Site or Services to advertise or offer to sell or buy any goods or services, other than properly using any functionality provided by FITT Finder as part of the Site or Services specifically for such purposes (including permissible advertising of Classes via the Platform) or with FITT Finder’s express prior written consent.
• License, sublicense, transfer, assign, reproduce, duplicate, copy, sell, resell, distribute, or exploit for any commercial purposes the Site or Services or any access to or use of the Site or Services.
• Modify, adapt, make derivate works of, translate, reverse engineer, decompile or disassemble the Site or Services.
• Remove any copyright, trademark or other proprietary rights notice from the Site or Services or any materials available through the Site or Services.
• Frame or mirror any part of the Site or Services without FITT Finder’s express prior written consent.
• Systematically download or store content from the Site or Services.
• Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or in any way gather content of the Site or in connection with the Services or reproduce or circumvent the navigational structure or presentation of the Site or Services without FITT Finder’s express prior written consent. Notwithstanding the foregoing, FITT Finder grants the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. FITT Finder reserves the right to revoke these exceptions either generally or in specific cases.
• Access the Site or Services if you are from a territory where U.S. businesses are prohibited from engaging in business by applicable law or if you have been designated a Specially Designated National, Denied Person, or Denied Entity by the U.S. government.
We may terminate your use of the Site or Services for any conduct that we consider to be inappropriate, or for your breach of this Agreement, including the Rules of Conduct set forth above (including, without limitation, if you engage in copyright infringement via or in connection with the Site or Services).
Your submission of personal information through the Site or in connection with the Services is governed by FITT Finder’s Privacy Policy, which is located at [www.__________] (the “Privacy Policy”). You agree that all information that you provide to us is true, accurate and complete, and that you will maintain and update such information regularly.
Submissions. The Site or Services may make available certain functionality (for example, social media pages or platforms, message boards, forums, blogs, chat functionality, messaging functionality and comment functionality, among other services) through which you are able to post, send or make available information and materials for use by FITT Finder, Providers, Members and/or other users of the Site and/or Services (each, a “Submission”). For clarity, Submissions include any feedback, ideas or suggestions in any format, including improvements to our software or Site design, that you transmit or submit to us regarding the Site and/or the Services or any other matter.
Our Rights to Use Your Submissions. For each Submission that you make available through or in connection with the Site or Services, you hereby grant to us a world-wide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, transferable and fully sublicensable (through multiple tiers) license, without additional consideration to you or any third party, to reproduce, distribute, perform and display (publicly or otherwise), adapt, modify and otherwise use and exploit such Submission, in any format or media now known or here after developed, and for any purpose (including promotional purposes, such as displaying a user comment on the front page of the Site or Services as a testimonial). Without limiting the foregoing, Submissions include your speaking, asking questions or otherwise presenting or participating in a Class via the Site and/or Services, and you consent to FITT Finder’s recording the content of your Submissions (whether oral or written, including video).
Disclaimer Regarding Functionality That Limits Who Can See Your Submissions. The Site and/or Services may permit users to share their Submissions with only a select group of other users, or make their Submissions public for all (even non-users of the Site and/or Service) to view. You acknowledge and agree that, although the Site and/or Services may provide certain features intended to allow you to restrict who can see your Submissions or to allow you to remove the content of one or more Submissions from the Site and/or Services, FITT Finder does not guarantee that such Submissions will never be accessible by non-permitted users or other persons. FITT FINDER HEREBY DISCLAIMS ANY AND ALL LIABILITY WITH RESPECT TO ANY UNAUTHORIZED ACCESS TO, DISTRIBUTION OR USE OF ANY USER CONTENT OR SUBMISSIONS.
Your Rights to Your Submissions. For purposes of clarity, since you only grant to us a non-exclusive license to your Submissions, you retain any ownership rights that you may have in any of the Submissions that you make available, subject to the terms and conditions of this Agreement. This means that you can use your Submissions for any purpose you wish outside of the Site and/or Services even after providing the Submissions to us.
You Are Legally Responsible for the Content of Your Submissions. You hereby represent and warrant that (a) you have all necessary rights to use and submit all content included in your Submissions (including any content created by a third party) and that you have the right and power to grant the licenses to FITT Finder as specified in this paragraph; and that (b) your Submissions do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (c) your Submission does not contain any viruses, adware, spyware, worms, or other malicious code. We may use Submissions for any purpose whatsoever without compensation to you or any other person. You are and remain responsible and liable for the content of any Submission.
We Disclaim Responsibility For The Content of Submissions. You understand that when using the Site and/or Services, you will be exposed to Submissions from a variety of sources, including other users, and that neither FITT Finder nor any FITT Finder Entities are responsible for the accuracy, usefulness, or intellectual property rights of or relating to such Submissions. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against FITT Finder and FITT Finder Entities with respect thereto. FITT Finder does not endorse any Submission or any opinion, recommendation or advice expressed therein, and FITT Finder expressly disclaims any and all liability in connection with Submissions. Without limiting the foregoing, FITT Finder may (but have no obligation to) monitor, evaluate or alter Submissions before or after they appear on the Site or in connection with the Services. We may disclose any Submissions and the circumstances surrounding their transmission to anyone for any reason or purpose. In addition, the FITT Finder Entities have no control over, and shall have no liability for, any damages resulting from the use (including republication) or misuse by any third party of your Submissions. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE ON THE SITE OR SERVICE OR OTHERWISE TO ANY THIRD PARTY, YOU DO SO AT YOUR OWN RISK.
We and/or our licensors, sponsors, partners, advertisers, content providers or other third parties own the information and materials made available through the Site and/or Services, including, without limitation, (i) FITT Finder’s and third party trademarks, service marks, logos, brands, and brand names, trade dress and trade names and other distinctive identification (collectively “FITT Finder Marks”); and (ii) information, data, materials, interfaces, computer code, databases, products, services, software applications and tools, text, images, photographs, audio and video material, and artwork that appears on the Site and/or Services, and (iii) the design, structure, selection, compilation, assembly, coordination, expression, functionalities, applications, look and feel, and arrangement of any content contained in or available through the Site and/or Services (the items identified in subsections (i) (ii) and (iii) shall be collectively referred to herein as “FITT Finder Content”). Such information and materials are protected by copyright, trademark, patent and/or other proprietary rights and laws. Except as expressly authorized in advance by us, you agree not to reproduce, modify, rent, lease, loan, sell, distribute or create derivative works based on, all or any part of the Site or Services or any FITT Finder Content or other information or materials made available through the Site or Services. The reproduction, transmission, distribution, sale, publication, broadcast, circulation or dissemination of any FITT Finder Content by you, or by you through any other person or entity, is prohibited unless express written consent is separately obtained from FITT Finder or the owner of such content if FITT Finder is not the owner. Any use of the FITT Finder Marks without FITT Finder’s express written consent or as expressly permitted by this Agreement is strictly prohibited. You may not alter, delete, obscure or conceal any copyright or other notices appearing in FITT Finder Content, including any such notices appearing on any FITT Finder Content you are permitted to download, transmit, display, print, or reproduce from the Site and/or Services. Nothing contained on the Site or Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any FITT Finder Content without the express prior written consent of the owner.
Subject to your compliance with all terms of this Agreement, you are granted a limited, non-exclusive, non-transferable, non-sublicensable license to use FITT Finder Content made available to you by the proper and intended functionality of the Site and Services and to print a single hard copy or download a single electronic copy for your personal use only of any materials made available on the Site and Service for printing or download, as applicable. You are not permitted to copy, scrape, transfer, rebroadcast, redistribute or resell any FITT Finder Content in any way.
The Site or Services may incorporate certain functionality that allows the routing and transmission of, and online access to, certain digital communications and content made available by third parties, including social media providers (such communications and content, “Third Party Content”). By using such functionality, you acknowledge and agree that you are directing us to access and transmit to you Third Party Content associated with such functionality. The Site or Services may provide links to other web sites and online resources that include Third Party Content. Third Party Content is the sole responsibility of the third party who provides the Content via the Site and Services. You agree that the FITT Finder Entities are neither responsible nor liable to you for any Third Party Content, including the accuracy, integrity, quality, legality, usefulness, or safety of, or intellectual property rights relating to, Third Party Content. We have no obligation to monitor Third Party Content, although we may monitor, specify policies and requirements for, or block or disable access to, any Third Party Content (in whole or part) via the Site or Services at any time. Your access to or receipt of Third Party Content via the Site or Services does not imply our endorsement of, or our affiliation with any provider of, such Third Party Content. Further, your use of Third Party Content may be governed by additional terms and conditions that are not set forth in this Agreement or our Privacy Policy (for example, terms and conditions that are made available by the providers of such Third Party Content). This Agreement does not create any legal relationship between you and the providers of such Third Party Content with respect to such Third Party Content, and nothing in this Agreement shall be deemed to be a representation or warranty by any of the FITT Finder Entities with respect to any Third Party Content. YOU AGREE THAT YOUR USE OF THIRD PARTY CONTENT IS AT YOUR OWN RISK AND IS SUBJECT TO THE TERMS AND CONDITIONS OF USE APPLICABLE TO SUCH THIRD PARTY CONTENT.
FITT Finder shall have the right, at any time, to block links to the Site or Services through technological or other means without prior notice.
You may link to the homepage of the Site, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part without our express consent.
Without limiting the generality of any other provisions of this Agreement, the content provided through the Site and/or or in connection with the Services (including Classes, FITT Finder Content and Third Party Content) is designed to only provide information on the subject matter covered. However, such content provided on or in connection with the Site or Services may be inaccurate, incomplete or out of date. Accordingly, we make no representation as to the completeness, accuracy or currentness of such content, including all descriptions, images, references, features, content, specifications, products and prices of products and services described or depicted on the Site or Services. Such content is also subject to change at any time without notice. Certain measures and similar descriptions are approximate and are provided for convenience purposes only.
The Site and/or Services may contain advertisements of third parties. The inclusion of advertisements on the Site and/or Services does not imply endorsement of the advertised products, information or services by FITT Finder or any FITT Finder Entities. FITT Finder shall not be responsible for any loss or damage of any kind incurred as a result of the presence of such advertisements on the Site and/or Services. Further, FITT Finder shall not be responsible or liable for the statements or conduct of any third party advertisers appearing on the Site and/or Services. If you decide to access any of the third party sites linked to the Site and/or Services (including via any links in any banner advertisements displayed on the Site and/or Services), you do so entirely at your own risk. You shall be solely responsible for any correspondence or transactions you have with any third party advertisers.
Certain parts of the Site and/or Services are available only with application approval, registration, login and/or a paid subscription.
When you complete any registration, application or other informational form, you represent and warrant that all information submitted to FITT Finder in connection with any such registration is complete and accurate and that you satisfy all criteria, requirements and qualifications for the category of use that you are applying or registering for. We may reject, or require that you change, for any reason, your category of use (e.g., Member level or category) or any user name, password or other information that you provide to us in registering. We reserve the right to revoke any user’s membership or other status for any reason at our sole discretion.
You are responsible for keeping your registration and other account information current by notifying us of any changes. Your user name and password are for your personal use only and should be kept confidential; you (and not FITT Finder) are responsible for any use or misuse of your user name or password, and you must promptly notify us of any confidentiality breach or unauthorized use of your user name or password, or your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
You must contact FITT Finder immediately if you become aware of or believe there is or may have been any unauthorized use of your personal registration, login or account information, or otherwise wish to deactivate your account or change your username or password due to security concerns. Please contact info@fittfinder.com for any such purposes.
By registering and/or creating an account, you are deemed to have “opted-in” to all data tracking, collection, use, and sharing permitted under our Privacy Policy. Without limitation, you agree to receive emails from us periodically relating to your account, site services, offers, and promotions, including third-party offers. If your account allows for changes, you may change your email or other settings as allowed by your account’s features.
When using the Site and/or Services via an account, the features of that account may permit you to store data, preferences set by you, content or other information for your convenience, but FITT Finder is under no obligation to retain any such data, preferences, content or other information.
It may take time to review your application or registration before we provide you a response. Turn around times posted within the Site and/or Service are only estimates and actual response and processing time may be shorter or substantially longer depending on, among other things, volume, the complexity of your submission or other factors. We reserve the right to change processing times at any time for any reason.
General. If you purchase any of our Services that are provided for a fee (“Paid Services”), you agree to pay us the applicable fees and taxes as stated within the Site and/or Services or pursuant to any Additional Terms at the time of purchase. Failure to pay these fees may result in the termination of your access or subscription to the Paid Services. Your purchase may be subject to foreign exchange fees or differences in prices based on location (e.g. exchange rates). You must pay us for applicable fees and taxes unless you cancel the Paid Service, in which case you agree to still pay these fees through the end of any applicable subscription period. This Agreement describes additional terms applicable to certain types of fees and payments, but nothing herein shall restrict FITT Finder from charging or using other types of fees and payment methods.
Subscription Services. FITT Finder may make certain Services available on a “subscription” basis from time to time. When you register and provide your payment information for a portion of the Services that is provided as a “subscription”, you obtain the right to use and access the specific Services comprising that subscription for a specific limited period of time, i.e., the subscription period as specified in the application or registration form or otherwise within the Site and/or Services or Additional Terms in consideration for your payment of the applicable subscription fee for such period. You also agree that at the end of each current subscription period, your subscription may be automatically renewed for an additional subscription period at the then-current subscription rates (which may be increased from period to period) unless you cancel your subscription prior to the renewal date. If you cancel a subscription prior to the end of its then-current subscription period, your subscription will be cancelled effective as of the end of the applicable subscription period and you may be obligated to pay the applicable subscription fees through the end of the applicable subscription period.
Free Trial Periods. When you register for a portion of the Services that is made available for a “free trial period”, you obtain the right to use and access the specific Services comprising that “free trial” for a specific limited period of time, i.e., the trial period as specified in the application or registration form or otherwise within the Site and/or Services. While there is no charge for the applicable Services during the applicable free trial period, you may be asked to provide your payment information (e.g., credit card) at the time you register for the free trial and, by so doing, you are deemed to agree to purchase a full, paid subscription for the applicable Service unless you cancel such purchase prior to the end of such free trial period.
Credit/Debit Card and other Payment Transactions. FITT Finder reserves the right to accept or discontinue acceptance of any payment method for any Paid Service or other fee or charge from time to time without notice. FITT Finder may accept a given payment method from some users but not others, depending on credit risk or other factors. If you wish to purchase any Paid Service (whether via the Site or Services or via telephone, mail-order, telemarketing efforts, customer service representatives, account representatives or other sales channels) (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction, including without limitation your credit card number, the expiration date of your credit/debit card, bank account information (for electronic check or ACH payments), your billing address, your shipping information and/or your email address. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, you grant to FITT Finder the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction. As permitted by our Privacy Policy, we will also have the right to save your credit or debit card information and use it for all future charges, which may automatically be charged to your saved information unless you notify FITT Finder of different payment information. We are not responsible for any fees or charges your bank or credit/debit card issuer may apply. If your credit/debit card issuer or bank reverses or refuses a charge to your credit/debit card or bank account, we may bill you directly and seek payment by another method such as a mailed statement. We may also cease providing Paid Services to you if we are unable to collect fees that are due.
Refunds/Exchanges/Credits. Refunds and exchanges will be subject to FITT Finder’s refund and exchange policies in effect at the time of the attempted refund or exchange.
THE SITE, SERVICES AND ANY GOODS OR SERVICES MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE OR SERVICES ARE PROVIDED TO YOU “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY RELIANCE ON THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SITE OR SERVICES. THE FITT FINDER ENTITIES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SITE, SERVICES AND ANY GOODS OR SERVICES OBTAINED OR MADE AVAILABLE THROUGH OR IN CONNECTION WITH THE SITE OR SERVICES (INCLUDING WITHOUT LIMITATION, CLASSES AND OTHER THIRD PARTY PRODUCTS AND SERVICES) TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE.
WHILE WE TRY TO MAINTAIN THE INTEGRITY AND SECURITY OF THE SITE AND SERVICES AND THE SERVERS FROM WHICH THE SITE AND SERVICES ARE OPERATED, WE DO NOT GUARANTEE THAT THE SITE OR SERVICES WILL BE OR REMAIN SECURE, COMPLETE OR CORRECT, OR THAT ACCESS TO THE SITE OR SERVICES WILL BE UNINTERRUPTED. THE SITE OR SERVICES MAY INCLUDE INACCURACIES, ERRORS AND MATERIALS THAT VIOLATE OR CONFLICT WITH THIS AGREEMENT. ADDITIONALLY, THIRD PARTIES MAY MAKE UNAUTHORIZED ALTERATIONS TO THE SITE OR SERVICES.
THE FITT FINDER ENTITIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, DAMAGES FOR LOSS OF PROFITS, USE, OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE OR SERVICES, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, AND EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. IN PARTICULAR, AND WITHOUT LIMITATION, THE FITT FINDER ENTITIES WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE OR SERVICES, OR FROM ANY CONTENT POSTED ON THE SITE OR IN CONNECTION WITH THE SERVICES BY FITT FINDER OR ANY THIRD PARTY. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE OR SERVICES IS TO STOP USING THE SITE OR SERVICES. THE MAXIMUM LIABILITY OF FITT FINDER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO FITT FINDER TO ACCESS AND USE THE SITE OR SERVICES DURING THE TWELVE MONTH PERIOD PRIOR TO THE TIME YOUR CLAIM ARISES AND (B) $1,000.
YOU ACKNOWLEDGE AND AGREE THAT FITT FINDER HAS OFFERED THE SITE AND SERVICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND FITT FINDER, AND THAT THE DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND FITT FINDER. FITT FINDER WOULD NOT BE ABLE TO PROVIDE THE SITE OR SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND FITT FINDER’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Except to the extent prohibited under applicable law, you agree to defend, indemnify and hold harmless each of the FITT Finder Entities from and against all claims, losses, costs and expenses (including attorneys’ fees) arising out of (a) your use of, or activities in connection with, the Site or Services; (b) any violation or alleged violation of this Agreement by you; or (c) any claim that any of your Submissions, Classes or Class Content, or any use or exploitation thereof caused damage to or infringed upon or violated the rights of a third party, including past, present or future infringement, misappropriation, libel, defamation, invasion of privacy or right of publicity, or violation of any right related to the foregoing. FITT Finder will provide prompt written notice of any such claims, but failure to provide such notice will not release you from any of your obligations pursuant to this Section except to the extent that you are actually prejudiced by such failure, and will not relieve you from any other liability that you may have to the FITT Finder Entities other than under this Section.
This Agreement is effective until terminated. FITT Finder may terminate your access to or use of the Site or Services, at any time and for any reason, including if FITT Finder believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Upon any such termination, your right to access or use the Site or Services will immediately cease. You agree that any termination of your access to or use of the Site or Services may be effected without prior notice, and that FITT Finder may immediately deactivate or delete your password and user name, and all related information and files associated with it, and/or bar any further access to such information or files. You agree that FITT Finder shall not be liable to you or any third party for any termination of your access to the Site or Services or to any such information or files, and shall not be required to make such information or files available to you after any such termination. Sections 1-5, 7, 9-28 and any other provision of this Agreement and any Additional Terms that by its terms or content applies following termination (including any and all licenses to content granted to us), shall survive any expiration or termination of this Agreement.
This Agreement is governed by the laws of the State of Delaware, U.S.A., without regard to its conflicts of law provisions, and regardless of your location. Neither the Uniform Computer Information Transaction Act nor the United Nations Convention on Contracts for International Sale of Goods apply and their applicability is expressly excluded.
Before bringing a formal legal case, please first try contacting us using the contact information located in Section 29. If we can’t resolve our dispute amicably, you and FITT Finder agree to resolve any claims through arbitration in accordance with this Section 22, regardless of the type of claim or legal theory.
ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND FITT FINDER, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY AND, BY YOUR ACCESS TO OR USE OF THIS SITE OR SERVICES, YOU AGREE THAT YOU AND FITT FINDER ARE EACH WAIVING OUR RIGHT TO TRIAL BY A JURY. BY YOUR ACCESS TO OR USE OF THE SITE OR SERVICES, YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND, BY YOUR ACCESS TO OR USE OF THE SITE OR SERVICES, 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, as amended by this Agreement. Any in-person hearings or appearances shall be held in Austin, TX, U.S.A. Arbitration proceedings shall be conducted in a manner that preserves confidentiality. The arbitrator’s decision shall follow this Agreement and shall be final and binding. The arbitrator shall 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.
In no event will the terms of this section or any other provision of this Agreement (including the Privacy Policy or any Additional Terms) limit FITT Finder’s ability to investigate complaints or reported violations by you or any third party of this Agreement or applicable law or to take any action FITT Finder deems necessary and appropriate to mitigate actions against FITT Finder, including reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties.
Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site and/or Services must be filed by you within one (1) year after such claim or cause of action arose or be forever barred.
The Site and the Services are controlled and operated by FITT Finder from the United States, and are not intended to subject FITT Finder to the laws or jurisdiction of any state, country or territory other than that of the United States. FITT Finder neither represents nor warrants that the Site or the Services or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the Site or Services from any jurisdiction outside the United States, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. You are also subject to United States export controls and are responsible for any violations of such controls, including any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Site or the Services, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time. Not all products or services described on the Site or the Services are available in all states, territories or jurisdictions.
[Note: The DMCA makes a safe harbor available from copyright claims related to content posted by third parties on your site provided the site designates a “Copyright Agent” with the US Copyright office. This can be a third party or can be someone at FITT Finder – we noted that you listed FITT Finder in your existing draft TOS – have you already registered? If not, instructions for doing that can be found here: https://www.copyright.gov/dmca-directory/help.html. It costs $6 to register and you must re-register every 3 years.]
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available on the Site or in connection with the Services infringe your copyright, you (or your agent) may send FITT Finder a written notice by mail, email or fax, requesting that FITT Finder remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send FITT Finder a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices should be sent to [FITT Finder’s DMCA Agent: by mail to FITT Finder, Inc., E. Stassney Ln., Austin, TX 78745, Attn: Copyright Agent; or by email to info@fittfinder.com].
We suggest that you consult your legal advisor before submitting a notice or counter-notice.
Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available on the two web sites GetNetWise (http://kids.getnetwise.org/) and On Guard Online (http://onguardonline.gov/). Please note that FITT Finder does not endorse any of the products or services listed at such sites.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site or Services, please contact us by writing to FITT Finder, Inc., E. Stassney Ln., Austin, TX 78745, or by calling us at 1-512-481-2738 or sending an email to info@fittfinder.com. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (800) 952-5210.
This Agreement does not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and FITT Finder. If any provision of this Agreement is found to be unlawful, void or for any reason unenforceable, that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent, and any prohibited assignment, transfer or sublicense is void. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction. 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. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This, together with all policies and other agreements referred to herein, is the entire Agreement between you and FITT Finder relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and FITT Finder relating to such subject matter. Notices to you may be made via posting to the Site or through the Services, by e-mail, or by regular mail, in FITT Finder’s discretion. The Site or Services may also provide notices of changes to this Agreement or other matters by displaying such notices or by providing links to such notices. Without limitation, you agree that a printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. FITT Finder will not be responsible for failures to fulfill any obligations due to causes beyond its control.
If you have any questions regarding the meaning or application of this Agreement, please direct such questions to info@fittfinder.com. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us.