Terms and Conditions of Use
Last Updated: April 24, 2019
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1. INTRODUCTION
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These terms of use (this "Agreement") are agreed to between Fitness Protection LLC (“Fitness Protection”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “you”) and sets out the terms and conditions governing the use of the Fitness Protection service, including any related mobile or web applications (the "Service") by the end user. The term "you" shall also include additional registered users whenever permitted under the applicable subscription. By accessing or using the Service, you signify that you have the right, authority and capacity to enter into this Agreement, that you have read and understand this Agreement, and that you agree to abide by all of the terms and conditions of this Agreement.
This Agreement includes the current privacy policy (the “Privacy Policy”) relating to the Service. You are responsible for compliance with this Agreement (including these policies).
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2. ACCESS TO THE SERVICE
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You need access to the internet in order to use the Service, and any cost for accessing the internet shall be your responsibility, that includes access via mobile phone, tablet, or other personal device.
Use of the Service is void where prohibited. The Service is directed to persons at least 18 years old and you must be at least 18 years old to register for the Service.
The Service may require you to register and create accounts for validation. We reserve the right to decline services to you for any reason without explanation based upon our findings in validating you registration. You agree to (a) provide accurate, current and complete information as prompted by any registration forms on the Service; (b) maintain and promptly update such information and any other information provided to Fitness Protection, to keep it accurate, current and complete; (c) maintain the security of your password and identification; and (d) be fully responsible for all use of your account and for any actions that take place using your account.
Subject to the terms of this Agreement, Fitness Protection hereby grants you a personal, non-exclusive, non-transferable, limited and revocable license to download, run and use the Service for personal non-commercial use on relevant devices owned or controlled by you. Such license also applies to updates and upgrades that replace or supplement the Service in any respect and which are not distributed with a separate license and related documentation. The Service is licensed, not sold, to you, and Fitness Protection retains ownership of all copies of the Service even after installation on your devices. Fitness Protection and its licensors retains sole and exclusive ownership of all rights, title and interests in the Service, the website, and all content, information, images, videos, and other information or materials available through the Service, and all intellectual property rights relating thereto, including, without limitation, issued patents and pending patent applications with respect to the Service and the technology related thereto. You acknowledge and agree that Fitness Protection will have no obligation to provide you with any support or maintenance in connection with the Site.
Fitness Protection may assign, license, or sublicense this Agreement or any part thereof without restrictions. You may not assign this Agreement or any part of them, nor transfer or sub-license your rights under the foregoing license, to any third party.
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3. FEES AND PRICING INFORMATION
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Subscription. Certain aspects of the Service provided by Fitness Protection, may require you to purchase a month to month subscription as specified during sign-up thereto (collectively a “Subscription”). Your Subscription will automatically continue on a month to month basis unless you cancel your Subscription, or we terminate it in our sole discretion.
Payment Methods. In connection with any and all Subscriptions that you select to purchase you must provide Fitness Protection (or its third party payment processor(s)) with a current, valid, accepted method of payment, which may change from time to time ("Payment Method"). All Subscription purchases are subject to this Agreement and any additional terms and conditions, including any fees, imposed by your financial services provider and/or mobile carrier, as applicable. By providing your account information in connection with any Subscription, you hereby authorize Fitness Protection (or its third party payment processor(s)) to charge the total cost of said Subscription and agree to be responsible for all associated charges. Should charges for which you are responsible fail at the time payment is required, you will be responsible for costs associated with Fitness Protection's efforts to collect amounts due. You represent and warrant that all information you provide in connection with the purchase of a Subscription is true, accurate and complete and that you have the right to provide us with your Payment Method. We reserve the right to offer Subscriptions for the durations and at the corresponding costs that we determine appropriate, in our sole discretion.
Billing Cycle. As indicated during sign-up, the fee for certain Subscriptions must be paid in a single upfront payment while other Subscriptions may allow payment on an installment basis. If the Subscription fee is paid in a single upfront payment, the total Subscription fee is due and payable to Fitness Protection immediately upon sale and your Payment Method will be automatically billed at that time. If the Subscription fee is paid on an installment basis, your Payment Method will automatically be billed at the beginning of each installment period (e.g. month to month) as specified during sign-up.
Automatic Renewal. In order to provide continuous service, Fitness Protection automatically renews all Subscriptions on the date the Subscription expires. Such renewals will be for the same duration of the original subscription term (e.g. monthly) and will be billed at the rate for the Subscription as of the date of your enrollment and according to your original billing cycle method. By enrolling in a Subscription, you agree that your Subscription will be subject to the above-described automatic renewals. You authorize Fitness Protection to automatically and continuously charge your Payment Method (e.g. credit card) on file on a monthly basis for such amounts in connection with your use of the Subscription. Your Subscription will remain in effect and continue to renew automatically without action by you until it is cancelled.
IF YOU WISH TO CANCEL YOUR AUTOMATIC SUBSCRIPTION RENEWAL, YOU MAY DO SO BY: visiting your account settings page and clicking on “Cancel my Subscription”. Fitness Protection will make reasonable efforts to process cancellation requests within two business days from the receipt of the cancellation request. If timely payment is not received or cannot be charged to your credit card for any reason, we reserve the right to either suspend or terminate your access to the Services. If you terminate your account, your profile will be removed from the Service, however, deletion may not be immediate and Fitness Protection may continue keeping your personal information in its records for billing purposes, audits and other administrative purposes.
Refund Policy. The Services and any purchases made through the Services are non-refundable. We will not refund any fees paid to us, including any advance charge(s) or payment(s) for any subscription term for the Service.
4. RESTRICTIONS APPLICABLE TO THE USE OF THE SERVICE
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The Service shall be for your own private non-commercial use only. You may not use the Service for any commercial purpose, or in any commercial or public settings.
The Service shall not be used in any manner that not expressly authorized hereunder. These include, but are not limited to, prohibitions against (i) any form of technical intervention in the Service for purposes of using the Service in any manner other than that intended and permitted under the present Agreement; (ii) copying and/or making public any Content; (iii) assigning any username or password to anyone else; or (iv) circumventing any technical mechanisms within the Service that have been established to protect Content from reproduction/distribution. You may not do any of the following: (a) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated "scraping"; (b) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Service in a manner that sends more request messages to the Fitness Protection servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Fitness Protection grants the operators of public search engines revocable 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); (c) transmitting spam, chain letters, or other unsolicited email; (d) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (e) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (f) uploading invalid data, viruses, worms, or other software agents through the Service; (g) collecting or harvesting any personally identifiable information, including account names, from the Service; (h) using the Service for any commercial purposes; (i) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; or (j) use the Service in a manner inconsistent with any and all applicable laws and regulations.
We may suspend your access to the Service if we have reason to believe that you are abusing the Service, for example, by way of the Service being used by any person other than those permitted under your subscription.
5. CONTENT RESTRICTIONS
The Service contains content, such as sound recordings, audiovisual works, other video or audio works, clips, images, graphics, text, software, training materials, workout recommendations, works of authorship, files, documents, applications, artwork, trademarks, trade names, metadata, and intellectual property, or materials relating thereto or any other materials, and their selection, coordination and arrangement (collectively, the “Content”). The Content is the property of Fitness Protection and third parties and is protected by copyright under both United States and foreign laws. The Content is made available to you only for your personal non-commercial use in connection with the Services as expressly permitted under this Agreement. All copying, distribution or other use of the Content is prohibited without the prior written consent of the Content rights holders. The use or posting of the Content on any other website, application or otherwise, for any purpose is expressly prohibited.
Fitness Protection is the owner of its name, logo, and branding and all intellectual property rights therein. Nothing in this Agreement or on the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Fitness Protections intellectual property, without Fitness Protection’s prior written permission specific for each such use. Elements of the Service are protected by copyright, trade dress, trademark, unfair competition, and other state or Federal laws and may not be copied or imitated in whole or in part, by any means, including but not limited to the use of framing or mirrors.
9. NO WARRANTY/ LIMITATION OF LIABILITY
The Service and the Content are provided on an "as is" and "as available" basis without any warranties of any kind. Fitness Protection disclaims all warranties, including, but not limited to, the warranty of title, merchantability, non-infringement of third parties rights, and fitness for particular purpose. Fitness Protection reserves the right to change functionality and content offered under the Service on an ongoing basis.
Fitness Protection makes no warranties or representations about the Service or Content, including but not limited to their accuracy, reliability, completeness, efficacy, or timeliness. Fitness Protection shall not be subject to liability for truth, accuracy, or completeness of any information conveyed to the user or for errors, mistakes or omissions therein or for any delays or interruptions of the data or information stream from whatever cause.
In no event shall Fitness Protection be liable for any damages whatsoever (including, without limitation, incidental and consequential damages, lost profits, or damages resulting from lost data or business interruption) resulting from the use or inability to use the Service and the Content, whether based on warranty, contract, tort (including negligence), or any other legal theory, even if we have been advised of the possibility of such damages. Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, our liability shall be limited to the greatest extent permitted by law. The liability of Fitness Protection arising from any error or other circumstance that may give rise to liability in relation to the Service shall – except for instances of gross negligence and willful misconduct - be limited to the amount paid by you for access to the Service for the applicable month.
Fitness Protection does not warrant that the Service will operate error-free or that the Service, its server, or the Content are free of computer viruses or similar contamination or destructive features. Updates to the Service may take place on a regular basis. Fitness Protection reserves the right to add or remove support for specific devices.
The Services may include features that promote physical activity, nutrition or general wellness. They are for your informational purposes only and are not intended as medical advice or services, or for diagnostic or treatment purposes. Consider the risks involved and consult with your medical professional before engaging in any physical activity. Never disregard professional medical advice or delay in seeking it because of something you have viewed on the Services, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND FITNESS PROTECTION.
YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, CYCLING, RUNNING, OR FOLLOWING A FITNESS PROTECTION TRAINING PLAN OFFERED ON THE SERVICES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF FITNESS PROTECTION OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS.
TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, FITNESS PROTECTION IS NOT RESPONSIBLE OR LIABLE FOR, AND YOU WAIVE ALL CLAIMS OR LIABILITY AGAINST FITNESS PROTECTION RELATED TO, ANY INJURIES OR DAMAGES YOU MAY SUSTAIN THAT RESULT FROM ANY PHYSICAL ACTIVITY YOU UNDERTAKE AND/OR YOUR USE OF, OR INABILITY TO USE, THE FEATURES ON THE SERVICES.
The use of any information provided on this site is solely at your own risk.
Developments in medical research may impact the health, fitness and nutritional information that appears here. No assurance can be given that the advice contained in this site will always include the most recent findings or developments with respect to the particular material.
10. INDEMNIFICATION
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You agree to defend, indemnify, and hold Fitness Protection harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising from, relating to or resulting from (a) your breach or alleged breach of the Agreement; (b) your access to, use or misuse of the Content or the Service; (c) any breach of your representations and warranties set forth above, or (d) your violation of any law or the rights of a third party. We shall provide notice to you of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding. We reserve the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
11. TERMINATION
We reserve the right, in our sole discretion, to restrict, suspend, or terminate the Agreement and your access to all or any part of the Service or the Content, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Service or the Content at any time without prior notice or liability, and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law.
12. LAW AND DISPUTE RESOLUTION
The Agreement is governed by the laws of the State of Colorado, without respect to its conflict of laws provisions that would require the application of the laws of a different jurisdiction. If you have any questions or believe that Fitness Protection has not adhered to these Terms, please contact Fitness Protection by e-mail at legal@coachedandloved.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and Fitness Protection are unable to reach a resolution to the dispute, you and Fitness Protection will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Denver, Colorado office. Any election to arbitrate by one party will be final and binding on the other. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. You and Fitness Protection agree that any arbitration will be limited to the dispute between Fitness Protection and you individually. YOU ACKNOWLEDGE AND AGREE THAT YOU AND FITNESS PROTECTION ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Fitness Protection otherwise agree, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding.
13. AMENDMENT OF THE TERMS AND CONDITIONS
Fitness Protection may upon reasonable notice amend the terms and conditions of the present Agreement or introduce new provisions, terms or conditions governing the use of the Service. If we make any substantial changes in the way we use your information, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or by prominently posting notice of the changes on our Service. Any material changes to this Agreement will be effective the day after posting. Please note that at all times you are responsible for updating your information to provide us with your most current e-mail address. In any event, changes to this Agreement may affect our use of information that you provided us prior to our notification to you of the changes. If you do not wish to permit changes in our use of your information, you must notify us prior to the effective date of the changes that you wish to deactivate your account with us. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
14. External Websites.
The Service may contain links to third-party websites, some of which may be displayed as a link within our own website (“External Websites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Websites. The content of such External Websites is developed and provided by others. You should contact the site administrator or webmaster for those External Websites if you have any concerns regarding such links or any content located on such External Websites. We are not responsible for the content of any linked or framed External Websites and do not make any representations regarding the content or accuracy of materials on such External Websites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked or framed External Websites, you do so at your own risk.
15. MISCELLANEOUS
There is no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between you and Fitness Protection or between Fitness Protection and any other user of the Service. This Agreement constitutes the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles are for convenience only and have no legal or contractual effect. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. This Agreement, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms and conditions set forth in this Agreement shall be binding upon assignees. Our failure to act on or enforce any provision of this Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Fitness Protection unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.