EXERCISE COACH ONLINE SERVICES
TERMS OF SERVICE
Last Updated: November 18, 2020
Please read these Exercise Coach Online Services Terms of Service (the “Agreement”) carefully. Your access and use of the Service (as defined below) constitutes your express consent to this Agreement.
This Agreement is between you and The Exercise Coach location (sometimes referred to in this Agreement as “TEC”, the “Studio”, “we”, or “us”) with which you have an account and governs your access to and use of the Exercise Coach Online Services that TEC makes available for use through your Client Policy Agreement, Subscription Agreement, Flex Pack, and/or any other TEC agreements related to your account with a Studio (collectively, “Client Agreements”). The Exercise Coach Online Services, together with any related mobile applications, software, web pages, cloud services, content, and other materials and services offered or available therein, and successor service(s) and app(s) thereto, are collectively referred to in this Agreement as the “Service”. This Agreement hereby incorporates by this reference the following and any additional terms and conditions posted by TEC through the Service, or otherwise made available to you by TEC.
This Agreement is intended only to supplement but not to replace or supersede the terms and conditions of your Client Agreements. In case of any conflict between any term, provision, or language contained in this Agreement and that of your other Client Agreements, you and we agree and acknowledge that the conflicting term, provision, or language of your Client Agreements will control and supersede that contained in this Agreement.
You must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to register with and use the Service. By using the Service, you affirm that you are of legal age to enter into this Agreement, or, if you are between the ages of 13 and 18, that you have obtained parental or guardian consent to enter into this Agreement. If you are a parent or legal guardian of such user under the age of 18, you agree to be fully responsible for the acts and omissions of such user in connection with the Service.
If you are an individual accessing or using the Service on behalf of, or for the benefit of, any corporation, partnership or other entity with which you are associated (an “Organization”), then you are agreeing to this Agreement on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to this Agreement. References to “you”, “your”, or “Participant” in this Agreement will refer to both the individual using the Service and to any such Organization. Please note that use of the Service by
or on behalf of any Organization may also be subject to additional terms made available by TEC from time to time, which are hereby incorporated by this reference into this Agreement.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 18 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
- Changes. Please note that this Agreement is subject to change by TEC in its sole and absolute discretion at any time. When changes to this Agreement are made, TEC will make a copy of the updated Terms of Service available on our website (the “Site”) and within the Application and any new supplemental terms will be made available from within, or through, the Service on the Site or within the App. We will also update the “Last Updated” date at the top of this Agreement posted on the Site or through the App. Any changes to the Agreement will be effective immediately for new users of the Service and will be effective thirty (30) days after posting notice of such changes on the Site or App for existing Participants with Subscription Agreements, provided that any material changes shall be effective for such members who have Subscription Agreements with us upon thirty (30) days after posting notice of such changes on the Site. TEC may require you to provide consent to an updated Agreement in a specified manner before further use of the Service. If you do not agree to any change(s) after receiving notice of such change(s), you agree to stop all use of the Service. Otherwise, your continued use of the Service shall constitute your acceptance of such change(s). You should regularly check the Site to view the most current version of this Agreement.
- Use of Service and Coach Credits, Training Sessions. By accessing and using the Service through your scheduled appointments, you understand and agree that use of the Service (a) will immediately be charged and counted against any unused Coach Credits or training sessions which you may have under any Subscription Agreement, Flex Pack or other Client Agreements which you may have entered into with your Studio, and (b) is neither complimentary nor unlimited use.
- Who May Use The Service. The Service is directed strictly to persons 18 years of age or older residing in the United States. You must be at least 18 years old (or the age of legal majority in your jurisdiction of residence) to use the Service. TEC does not knowingly collect information from any person under age 18. Minors between the ages of 13 and 18 years old that can safely use the Service may participate in certain aspects of the Service provided that they do so under their parent’s or legal guardian’s supervision and that such parent or legal guardian agrees to be bound by this Agreement. If you are a parent or legal guardian of a user under the age of 18 (or the applicable age of legal majority), you agree to be fully responsible for the acts and omissions of such user in connection with the Service.
- Jurisdiction. The Service is controlled or operated (or both) from the United States, and is not intended to subject TEC to any non-U.S. jurisdiction or laws. The Service may not be appropriate or available for use in some non-U.S. jurisdictions. Any use of the Service is at your own risk, and you must comply with all applicable laws, rules and regulations in doing so. We may limit the Service’s availability at any time, in whole or in part, to any person, geographic area or jurisdiction that we choose in our sole and absolute discretion.
- License to Use The Service. Subject to your compliance with this Agreement, TEC grants you a limited, non-transferable, non-exclusive, revocable license to access and use the Service for your own personal, non-commercial use and for no other purpose whatsoever. This license includes the right to view and listen to content available on the Service. This license is personal to you and may not be assigned or sublicensed to anyone else. Subject to your compliance with the Agreement, TEC grants you a limited, non-transferable, non-exclusive, revocable license to download, install and use a copy of the App on single mobile device or computer that you own or control and to run such copy of the App solely for your own personal, non-commercial use and for no other purpose whatsoever. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
- Restrictions. Except as expressly permitted in writing by an authorized representative of TEC, you will not use the Service except as expressly authorized under this Agreement, and you will not reproduce, redistribute, sell, create derivative works from, decompile, reverse engineer, or disassemble the Service, nor will you take any measures to interfere with or damage the Service, nor will you use the Service (or any component thereof) to create any product or technology that competes with the Service (or any component thereof). You will not download and/or install any third-party software and/or application on any device through which you access and use the Service that is not permitted by TEC in writing. All rights not expressly granted by TEC in this Agreement are reserved.
- Medical and Physical Condition Disclaimer. In accessing or using the Service, you acknowledge and agree that each of the representations made by you your Release and Indemnification Agreement with TEC (including any same or similar representations in any other Client Agreements) are true, complete, and accurate in all respects. This includes but is not limited to the declaration that you are of sound mind and body and free of any condition, impairment, disease, infirmity, or other illness that would inhibit, adversely impact or restrict your participation or use of any equipment in the Service. Further, you acknowledge that you have been informed of the importance of regular physician examinations to ensure your safe participation in physical activity and exercise, in general, as well as the strength training programs that TEC provides, in particular. Therefore, you hereby consent to either (i) having already provided a physician or medical release to your local TEC location or (ii) assume all responsibility for your participation without a physician or medical release fully understanding the inherent risks associated with the Service. Notwithstanding the foregoing, prior to any access or use of the Service, you are responsible for providing current and accurate information and disclosing any health or medical issues to your Studio. The Service and any Personal Training Programs (as defined in your Client Agreements) are dependent upon the information you provide being complete and accurate. We may, at our sole discretion, refuse or cancel your Subscription, or deny you access to the Service, if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.THE SERVICE INVOLVES PARTICIPATION IN ONLINE EXERCISE AND PERSONAL TRAINING PROGRAMS THAT ARE RIGOROUS AND INTENSIVE IN NATURE AND IS DESIGNED FOR EDUCATIONAL AND/OR ENTERTAINMENT PURPOSES ONLY. YOU SHOULD CONSULT YOUR PHYSICIAN BEFORE BEGINNING A NEW FITNESS PROGRAM. YOU SHOULD NOT RELY ON INFORMATION OR TRAINING PROGRAMS AVAILABLE IN OR VIA THE SERVICE, INCLUDING INFORMATION AND PROGRAMS TAILORED SPECIFICALLY FOR YOU, AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A LICENSED PHYSICIAN OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTHCARE PROFESSIONAL BECAUSE OF INFORMATION AVAILABLE ON THE SERVICE OR COMMUNICATED TO YOU THROUGH THE SERVICE. THE USE OF INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK.NOTHING STATED OR POSTED ON OR AVAILABLE THROUGH THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. THE SERVICE IS CONTINUALLY UNDER DEVELOPMENT AND TEC MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO ITS ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS ON OR THROUGH THE SERVICE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED IN THE SERVICE WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL
- Waiver and Release. By using the Service, you acknowledge that you may be exposed to a variety of hazards and risks, foreseen or unforeseen, including risks that arise as a result of entering a gym space or any other space or environment in which the Service is made available, performing physical activity, and/or using the equipment on which the Service is available. You understand that injuries or damage could occur by natural causes or activities of other persons, including the activities of other persons using such equipment, or other third parties (including third-party fitness instructors and other exercise participants), whether as a result of negligence or otherwise. To the fullest extent permitted by applicable law, you voluntarily assume all risk of loss, damage and injury to person or property that may arise from, or that is related to, your use of the Service, whether such risk is known or unknown to you.You hereby waive and release TEC and its Affiliated Entities (as defined below), to the maximum extent permitted by law, from any claim, action, suit or demand arising out of or in connection with the use of the Service (including with respect to any physical injury or death and/or property damage or loss). You acknowledge that neither TEC nor the Affiliated Entities will incur any obligation to you under any legal theory (including negligence) as a result of your use of the Service. You agree that this release is binding upon you and your heirs, executors, administrators, successors and assigns. For purposes of this Agreement, the term “Affiliated Entities” shall mean, collectively, TEC, your local TEC Studio, Exercise Coach USA LLC, Gymbot, LLC, and any parent, subsidiaries, franchisees of same, including their respective shareholders, directors, officers, employees, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.The foregoing waiver and release is intended to apply to all claims known, unknown, or suspected to exist, with the intent of waiving, if applicable, the effect of California Civil Code Section 1542 (which states that a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her, must have materially affected his or her settlement with the debtor) and other analogous laws or legal principles of any jurisdiction requiring the intent to release future unknown claims.
- Code of Conduct. In connection with your access and use of the Service, you agree that you, whether by yourself or through a third-party, will not at any time do or attempt to do any of the following:
a.) Post, transmit or otherwise make available through or in connection with the Service any materials that are or may be: (i) threatening, harassing, degrading, hateful or intimidating, or otherwise fail to respect the rights and dignity of others; (ii) defamatory, libelous, fraudulent or otherwise tortious; (iii) obscene, indecent, pornographic or otherwise objectionable; or (iv) protected by copyright, trademark, trade secret, right of publicity or privacy or any other proprietary right, without the express prior written consent of the applicable owner.
b.) Post, transmit or otherwise make available through or in connection with the Service any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file or program that is or is potentially harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment in connection with, the Service (each, a “Virus”).
c.) Use the Service in a way other than for your own personal use, including without limitation for any commercial purpose, or for any purpose that is fraudulent or otherwise tortious or unlawful.
d.) Harvest or collect information about users of the Service.
e.) Interfere with or disrupt the operation of the Service or the servers or networks used to make the Service available, including by hacking or defacing any portion of the Service or violate any requirement, procedure or policy of associated servers or networks.
f.) Restrict or inhibit any other Participant or party from using the Service.
g.) Reproduce, modify, adapt, translate, create derivative works of, sell, rent, lease, loan, timeshare, distribute or otherwise exploit any portion of (or any use of) the Service except as expressly authorized herein, without TEC’s prior written consent.
h.) Reverse engineer, decompile, or disassemble any portion of the Service, except where such restriction is expressly prohibited by applicable law.
i.) Remove any copyright, trademark, or other proprietary rights notice from the Service.
j.) “Frame” or mirror any portion of the Service, or otherwise incorporate any portion of the Service into any product or service.
k.) Systematically download and store Service content.
l.) Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Service content, or reproduce or circumvent the navigational structure or presentation of the Service.
- Client Agreement Required. To access and use the Service, you must have entered into a Client Agreement with, and be a current client in good standing of, your TEC Studio. You must provide complete and accurate registration information to TEC when prior to entering into any Subscription Agreement, complete the subscription process, and notify us if any of your information changes.
- Account Security. You acknowledge that your username and password to access and use the Service are for your personal use only and should be kept confidential. We may reject, or require that you change, any username (which may be your e-mail address), password, or other information that you provide to us to access or use the Service. You are responsible for all activity that occurs under your account to access and use the Service, including any activity by unauthorized users. You at all times agree to safeguard the confidentiality of your login credentials and, if you are using a device to utilize the Service that others have access to, you must log out of your account after using the Service. If you become aware of any unauthorized access to your account, you must immediately change your password and notify us at [email protected]
- TEC Proprietary Rights. We and our suppliers own the Service, which is protected by proprietary rights and laws. Our trade names, trademarks, and service marks include “THE EXERCISE COACH” and any associated logos. All trade names, trademarks, service marks, and logos on or through the Service not owned by us are the property of their respective owners. You may not use our trade names, trademarks, service marks, or logos in connection with any product or service that is not ours, not expressly authorized by us, or in any manner that is likely to cause consumer confusion. Nothing contained on the Service should be construed as granting any right to use any trade names, trademarks, service marks, or logos without the express prior written consent of the actual owner.
- Third Party Materials; Links. Certain Service functionality may make available access to information, products, services and other materials made available by third parties (“Third Party Materials”) or allow for the routing or transmission of such Third Party Materials, including via links. By using such functionality, you are directing us to access, route and transmit to you the applicable Third Party Materials. We neither control nor endorse, nor are we responsible for, any Third Party Materials, including the accuracy, validity, timeliness, completeness, reliability, integrity, quality, legality, usefulness or safety of Third Party Materials, or any intellectual property rights therein. Certain Third Party Materials may, among other things, be inaccurate, misleading or deceptive. Nothing in this Agreement shall be deemed to be a representation or warranty by TEC with respect to any Third Party Materials. We have no obligation to monitor Third Party Materials, and we may block or disable access to any Third Party Materials (in whole or part) through the Service at any time. In addition, the availability of any Third Party Materials through the Service does not imply our endorsement of, or our affiliation with, any provider of such Third Party Materials, nor does such availability create any legal relationship between you and any such provider. Your access or use of Third Party Materials is at your own risk and is subject to any additional terms, conditions and policies applicable to such Third Party Materials (such as terms of service or privacy policies of the providers of such Third Party Materials).
- No Warranties. To the fullest extent permitted under applicable law: (a) the Service is made available to you on an “AS-IS”, “WHERE-IS”, and “AS-AVAILABLE” basis, without any warranties of any kind, whether express, implied or statutory; and (b) TEC disclaims all warranties with respect to the Service, including the warranties of merchantability, fitness for a particular purpose, non-infringement, and title. All disclaimers of any kind (including in this section and elsewhere in this Agreement) are made for the benefit of both TEC, its Affiliated Entities, and their respective successors and assigns.While we try to maintain the timeliness, integrity, and security of the Service, we do not guarantee that the Service is or will remain updated, complete, correct, or secure, or that access to the Service will be uninterrupted. The Service may include inaccuracies, errors, and materials that violate or conflict with this Agreement. Additionally, third parties may make unauthorized alterations to the Service. If you become aware of any such alteration, we ask that you contact us immediately at [email protected] with a description of such alteration and its location on the Service.
- LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: (A) TEC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, INCLUDING DAMAGES FOR LOSS OF PROFITS, USE OR DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; (B) WITHOUT LIMITING THE FOREGOING, TEC WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF OR INABILITY TO USE THE SERVICE OR FROM ANY THIRD PARTY MATERIALS, INCLUDING FROM ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH, OR FROM TEC’S TERMINATION OF THIS AGREEMENT; (C) YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICE OR THIRD PARTY MATERIALS IS TO STOP USING THE SERVICE AND, IF APPLICABLE, TO DELETE THE APP; AND (D) THE MAXIMUM AGGREGATE LIABILITY OF TEC FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE THE GREATER OF (X) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO TEC TO USE THE SERVICE WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE APPLICABLE CLAIM, OR (Y) TEN U.S. DOLLARS ($10). ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE FOR THE BENEFIT OF BOTH TEC AND THE AFFILIATED ENTITIES AS DEFINED HEREIN, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
- Indemnification. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless TEC and the Affiliated Entities, and their respective successors and assigns, from and against all claims, liabilities, damages, judgments, awards, losses, costs, expenses and fees (including attorneys’ fees) of a third-party arising out of or relating to (a) any use of, or activities in connection with, the Service by you, your additional users, and/or any other person who uses the Service through you or your Subscription Agreement; and (b) any violation or alleged violation of this Agreement by you.
- Termination. This Agreement is effective until terminated. TEC may terminate or suspend your use of the Service at any time and without prior notice, for any or no reason, including if TEC believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or your Subscription Agreement. Upon any such termination or suspension, your right to access and use the Service will immediately cease, and TEC may, without liability to you or any third party, immediately deactivate or delete your user name, password and account, and all associated materials, without any obligation to provide any further access to such materials.
- Arbitration Clause; Waiver of Class ActionAGREEMENT TO ARBITRATE. YOU AND WE AGREE THAT ALL DISPUTES BETWEEN YOU AND US OR OUR AFFILIATED ENTITIES, AS WELL AS OFFICERS, DIRECTORS OR EMPLOYEES IN THEIR CAPACITY AS SUCH (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THIS AGREEMENT AND/OR YOUR USE OF THE SERVICE WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE JAMS, INC. (“JAMS”) RULES FOR ARBITRATION OF CONSUMER RELATED DISPUTES IN EFFECT AT THE TIME OF DISPUTE, AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT EITHER PARTY MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE EQUITABLE RELIEF IN ANY U.S. COURT HAVING JURISDICTION TO PROTECT AGAINST AN INFRINGEMENT OR MISAPPROPRIATION OF THAT PARTY’S INTELLECTUAL PROPERTY RIGHTS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.Class Action Waiver. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this Agreement to arbitrate. BY ACCESSING AND CONTINUING TO USE THE SERVICE, YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLAIM YOU MAY HAVE AGAINST US, INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision is governed by the Federal Arbitration Act and not by any state law concerning arbitration. If JAMS is unwilling or unable to set a hearing date within 180 days of filing, then either we or you can elect to have the arbitration administered instead by the American Arbitration Association. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement.Time Limitation. You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with your relationship with us, including the use of the Service or arising out of this Agreement, must be filed within one (1) year after such claim or cause of action arose or be forever banned.Opt-Out. If you do not wish to be bound by the arbitration and class action waiver provisions in this Section 19, you must notify us in writing within thirty (30) days of the date that you first use the Service or thirty (30) days from the date this Section 19, was last updated (unless a longer period is required by applicable law). Your written notification must include your name and mailing address, your username, and the e-mail address you used to set up your TEC account, and a statement that you do not wish to resolve disputes with us through arbitration and demonstrating compliance with the 30-day time limit to opt-out. You must mail your opt-out notice to this address: The Exercise Coach USA, LLC, Attn: Dispute Resolution Opt-out, 531 Telser Rd., Lake Zurich, Illinois 60047. If you do not notify us in accordance with this Section 19, you agree to be bound by the arbitration and class-action waiver provisions set out above, including any revisions we make to this Agreement after the date of your acceptance. If we make any changes to this Section (other than a change to the address at which we will receive notices), you may reject the change by sending us written notice to the above address within thirty (30) days of the effective date of the change. Any opt-out notice affects only this Agreement and not any other agreements between you and us.Fees. Your arbitration fees will be limited to those fees set forth in the JAMS Rules for Arbitration of Consumer-Related Disputes with the remainder paid by TEC.Survival. This Section 19, will survive the termination of your relationship with us. If any of the prohibitions against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable under applicable law, then such provisions will be null and void and severed from this Agreement.
- Information or Complaints. If you have a question or complaint regarding the Service, please send an e-mail to [email protected]. You may also contact us by writing to The Exercise Coach USA, LLC, Attn: Customer Support, 531 Telser Rd., Lake Zurich, Illinois 60047, or by calling us at (855) 400-5250. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in any e-mail correspondence with us.
- Copyright Infringement. The Digital Millennium Copyright Act of 1998 (“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 Service infringe your copyright, you (or your agent) may send TEC a written notice by mail or e-mail, requesting that TEC remove such 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 to TEC a counter-notice. TEC will promptly terminate without notice any user’s or Participant’s access to the App or the Service if such user or Participant is determined by TEC to be a “repeat infringer” who has been notified by us of infringing activity violations more than twice and/or who has had their user-submitted content removed from the Service more than twice.Notices and counter notices must meet the then-current statutory requirements imposed by the DMCA. See https://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to TEC’s Copyright Agent as follows: By mail to: TEC Copyright Agent, 531 Telser Rd., Lake Zurich, Illinois; or by e-mail to [email protected]. We suggest that you consult your legal advisor before filing a DMCA notice or counter-notice.
- Export Restrictions. The Service and the underlying information and technology are subject to United States and international laws, restrictions and regulations that may govern the import, export, downloading, and use of the Service. You agree to comply with these laws, restrictions and regulations when downloading or using the App or Service.
a.) This Agreement shall be governed by the laws of the State of Illinois, United States of America, without regard to principles of conflicts of law that would require different result. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods will not apply. Subject to the foregoing agreements in Section 19, any other action arising out of or relating to this Agreement or your use of the Service must be commenced in the state or federal courts located in Lake County, IL, United States of America, and you consent to the jurisdiction of those courts.
b.) Relationship with TEC. 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 TEC.
c.) Severability. 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.
d.) Transfer. You may not assign, transfer or sublicense any or all of your rights or obligations under this Agreement without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under this Agreement without restriction.
e.) Waiver. No waiver by either party of any breach or default under this Agreement will be deemed to be a waiver of any preceding or subsequent breach or default.
f.) Headings; Interpretation. Any heading, caption or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular shall have the same meanings when used in the plural, where appropriate and unless otherwise specified. Any use of the term “including” or variations thereof in this Agreement shall be construed as if followed by the phrase “without limitation.”
g.) Entire Agreement. This Agreement, including any terms and conditions incorporated herein, is the entire agreement between you and TEC relating to the subject matter hereof, and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and TEC relating to such subject matter.
h.) Notice. Notices to you (including notices of changes to this Agreement) may be made via posting to the Service or by e-mail (including, in each case, via links), or by regular first class mail. Without limitation, 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.
i.) Survival. The following Sections of this Agreement shall survive any termination or earlier cancellation of this Agreement or your Subscription Agreement: 4-5, 7, 12-16, 19, 21-23.
- Apple-Specific Terms. In addition to your agreement with the foregoing terms and conditions, and notwithstanding anything to the contrary herein, the following provisions apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to this Agreement and does not own and is not responsible for the App. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and shall not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the use of the App, including those pertaining to intellectual property rights, must be directed to TEC in accordance with the “Information or Complaints” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, or as otherwise permitted by the Usage Rules set forth in Apple’s App Store Terms of Service, except that the App may also be accessed and used by other accounts associated with you via Apple’s Family Sharing or volume purchasing programs. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon your acceptance of the terms and conditions of this Agreement, will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof; notwithstanding the foregoing, TEC’s right to enter into, rescind or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.