U.S. TERMS OF SERVICE
Last Revised: January 29, 2018
Fitscope LLC and its affiliates (“Fitscope,” we,” “us,” or “our”) welcome you to Fitscope.com, and Fitscope‘s other websites, online locations, and mobile applications (collectively, the “Sites”).
Fitscope provides an online marketplace through the Sites that connect independent health and fitness experts and other wellness professionals (collectively, “Pros”) who offer consultations (each a “Session”) with clients who seek to schedule consultations with Pros (“Clients”), a platform for Pros to list information about themselves and the Sessions they offer and for Clients to schedule and pay for Sessions, and other services offered by Fitscope through the Sites (collectively, the “Marketplace Services,” together with the Sites, the Content, defined below, and all features and functionality available through the Sites, the “Fitscope Platform”). When used herein, the term “user” or “users” refers to Clients, Pros, and any others that access, use or browse the Fitscope Platform.
These Terms of Service together with any Supplemental Terms, defined below (collectively, these “Terms”) govern your access to, and use and browsing of the Fitscope Platform.
YOUR SCHEDULING AND PARTICIPATION IN ANY SESSION IS SOLELY AT YOUR OWN RISK. YOU UNDERSTAND AND AGREE THAT FITSCOPE IS NOT A PARTY TO ANY SESSIONS OR SESSION ARRANGEMENTS BETWEEN CLIENTS AND PROS. YOU UNDERSTAND AND AGREE THAT PROS ARE NOT EMPLOYEES, AGENTS, JOINT VENTURERS OR PARTNERS OF FITSCOPE. THE FITSCOPE PLATFORM SOLELY OFFERS A PLATFORM FOR PROS AND CLIENTS TO CONNECT WITH ONE ANOTHER AND FOR CLIENTS TO ENGAGE PROS DIRECTLY. FITSCOPE DOES NOT HIRE PROS FOR CLIENTS. PROS ACT EXCLUSIVELY ON THEIR OWN BEHALF AND NOT ON BEHALF OF FITSCOPE. FITSCOPE MAKES NO REPRESENTATIONS, WARRANTIES GUARANTEES, OR ENDORSEMENTS AS TO ANY PRO OR OTHER THIRD PARTY PRODUCTS OR SERVICES, THE COMPATIBILITY OF ANY CLIENT WITH ANY PRO, OR THE QUALITY, TIMING, LEGALITY OR OTHER ASPECT OF THE SERVICES OR PRODUCTS OFFERED OR DELIVERED BY PROS, OR OTHERWISE RECOMMENDED, ADVERTISED, OR OFFERED ON OR THROUGH THE FITSCOPE PLATFORM. FITSCOPE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO AMOUNTS PROS MAY EARN THROUGH THE FITSCOPE PLATFORM, THE CONDUCT OF ANY CLIENT OR SESSION PARTICIPANT, THE SAFETY OR SUITABILITY OF ANY SESSION LOCATION, OR CLIENT OR PRO CANCELING ANY SESSION.
WHEN INTERACTING WITH FITSCOPE PROS, YOU SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT YOUR PERSONAL SAFETY AND PROPERTY, JUST AS YOU WOULD WHEN INTERACTING WITH OTHER PERSONS WHOM YOU DON’T KNOW. By using the Services, you agree to hold Fitscope free from the responsibility for any liability or damage that might arise out of the transaction involved. You understand and agree that Fitscope has no control over and is not responsible for the acts or omissions of any Clients, Pros or other third party users on or off the Site.
- Acceptance of Terms of Service
- Marketplace Services
- Permitted Uses
- User Content
- Ownership and Proprietary Rights
- Copyright Infringement Claims Policy
- Suspension and Termination
- Disclaimers and Limitations of Liability
- Disputes with other Users
- Notice Required by California Law
- Arbitration, Governing Law and Dispute Resolution
- Other Provisions
1. Acceptance of Terms of Service
These Terms may be revised or updated from time to time. Accordingly, you should check the Terms regularly for updates. You can determine when the Terms were last revised by referring to the “Last Revised” date at the top of this page. Each time you access, use or browse the Fitscope Platform, you signify your acceptance of the then-current Terms.
Fitscope may make changes to all content available on or through the Fitscope Platform including, without limitation, text, brands, photographs, documents, graphics, audio, videos, logos, icons, images, media, data, charts, maps, software and other information and materials ideas, proposals, concepts, content, materials, works and deliverables (collectively, the “Content”), services or features of the Fitscope Platform, and any other aspect of the Fitscope Platform or any part or any of the foregoing, at any time. You understand and agree that Fitscope may discontinue or restrict your use of all or any part of the Fitscope Platform at any time for any reason or no reason and with or without notice.
Your access to or use of certain aspects of the Fitscope Platform may be subject to additional terms, conditions, details and specifications, posted to the Fitscope Platform, or may require you to agree with and accept additional terms and conditions (“Supplemental Terms”). By accessing or using those aspects of the Fitscope Platform you are expressly agreeing to such Supplemental Terms. If there is a conflict between any part of these Terms and any Supplemental Terms, the Supplemental Terms will take precedence with respect to your access to or use of those aspects of the Fitscope Platform.
In consideration of your use of the Fitscope Platform, you represent that you are 18 years of age or older, or of an age to form a legal binding contract where you reside and you are that not prohibited from accessing or using the Fitscope Platform or participating in any Session under the laws of the United States or any other applicable jurisdiction.
3. Marketplace Services
Prior to using the Marketplace Services you must register an account with a username and password (“Account”). You agree to follow the on-screen instructions, and to complete the applicable forms and input information requested in connection with the registration process. You represent and warrant that the information you provide in connection with the registration process or as otherwise requested for the Account or in connection with use of the Marketplace Services will at all times be accurate, truthful, current and complete.
You agree to prevent anyone other than yourself from accessing or using the Account, and you agree to take all reasonable and appropriate security measures to prevent any unauthorized access or use of the Account or other breach of security relating to the Fitscope Platform or data accessible through the Account. You agree to keep the Account username and password confidential and not to provide Account information to anyone else. You are fully responsible for all uses of the Account. Without limiting the foregoing, you are fully responsible for all statements made and acts or omissions that occur while your Account password is being used, whether by you or third parties. You shall log out of the Account at the end of each session. Fitscope is authorized to act on instructions or information received through use of any Account and is not liable for any loss or damage arising from your failure to comply with this Section. You are solely responsible to keep backups of any content that you do not want deleted, modified or removed from your Account.
When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on Fitscope, if it is a separate legal entity. You authorize Fitscope, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
B.Marketplace Services for Clients
When logged into your Account you may schedule Sessions with Pros. When scheduling a Session you may be asked to specify the following (“Session Selection”): (a) confirmation of the price of the video session (“Session Price”) and (b) date and time of the requested session.
By requesting a session, you represent and warrant that the Location from which you participate in the session is a safe and suitable location for the Session and you or the other Session Participants are authorized to host the Session in such location.
After submitting your Session Selection, the Pro you selected will be notified of your selections and will have the option of accepting, rejecting or suggesting a different date and time for the Session. If the Pro agrees to the Session, you will receive a notification of the Pro‘s acceptance (“Pro‘s Acceptance”). If you do not cancel your Session, your Session will remain scheduled with the Pro.
Client agrees, and shall cause each Session Participant in a Session scheduled by Client to agree, to be bound by all obligations and all terms and conditions that apply to Client under these Terms, provided that only Client will have the obligation to make payments for the Session and only Client will have the right to schedule and cancel Sessions. Client acknowledges and agrees that only individuals who agree to the foregoing may participate in Sessions. Client shall be fully responsible and liable for each Session Participant’s breach of these Terms. Client agrees that upon request, Client shall disclose to Fitscope the name and contact information for each Session Participant. Client shall immediately notify Fitscope if Client becomes aware of any breach of these Terms by Client or any Session Participant.
ii.Fees and Payments
a. Session Payment. To participate in a Session, you must make payment 24 hours prior to the session start time. If you do not make payment 24 hours prior to session start time, Fitscope reserves the right to cancel the session. By adding a credit card to your Wallet, you agree to the following:
i) You authorize Fitscope to charge your credit card, debit card or other payment method on file in the Account and to collect payment through such method for any and all Fees as they become due and payable. If you desire to designate a different payment method to be charged for future Fees, or there is a change in validity or details with respect to such payment method, you shall update the Account promptly.
ii) At Fitscope‘s sole discretion, pro rata refunds or credits may be granted in extenuating circumstances for Sessions that Client did not receive, as a result of specific refund guarantee promotion, to correct any errors made by Fitscope, or in the event that Fitscope permanently terminates or ceases to offer the Marketplaces Services or terminates your access to the Marketplace Services for any reason other than your breach of these Terms. Other than pursuant to the preceding sentence, all Fees paid to Fitscope are non-refundable.
iii) All Fees charged to Client are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Client shall be responsible for payment of all taxes, levies, or duties associated with his or her purchases made in connection with the Fitscope Platform.
b. Cancellation. YOU MAY CANCEL YOUR SESSION UP TO 24 HOURS IN ADVANCE FOR A FULL REFUND. If you cancel a Session, you will only be entitled to a refund of Fees paid for the canceled Session, if the Session was canceled at least twenty-four (24) hours prior to the scheduled Session. You will not be entitled to any refund, credit or replacement Session for Sessions that you cancel within twenty-four (24) hours of the Session Time.
If a Pro cancels a scheduled Session, you may be notified through an app notification or the email address associated with the Account, and will be entitled to schedule a new Session in place of the canceled Session.
C. Marketplace Services for Pros. In addition to these Terms (excluding the prior section for Clients), Pros must agree to provide and maintain valid physical trainer certifications and/or insurance while providing Fitscope Services. However, Fitscope does not guarantee or warrant, and makes no representations regarding, the accuracy, reliability, quality or suitability of such Fitscope Pros. WHEN INTERACTING WITH FITSCOPE PROS AND CLIENTS, YOU SHOULD EXERCISE CAUTION AND COMMON SENSE TO PROTECT YOUR PERSONAL SAFETY AND PROPERTY, JUST AS YOU WOULD WHEN INTERACTING WITH OTHER PERSONS WHOM YOU DON’T KNOW. By using the Services, you agree to hold Fitscope free from the responsibility for any liability or damage that might arise out of the transaction involved. You understand and agree that Fitscope has no control over and is not responsible for the acts or omissions of any Clients, Pros or other third party users on or off the Site.
Each Fitscope Pro or other service provider shall be free in his or her sole discretion to determine at what times and on what dates he or she shall make himself or herself available on the Fitscope Platform to accept booking requests from Clients.
D. Marketplace feedback. You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that Fitscope post composite or compiled feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you, including your star rating (“SR”), if any, will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that Fitscope will make feedback results available to other marketplace Users, including composite or compiled feedback. Fitscope provides this feedback system as a means through which Users can share their opinions publicly and Fitscope does not monitor or censor these opinions. You acknowledge and agree that posted composite or compiled feedback and any SR relate only to the business advertised in the Pro Profile and not to any individual person. You agree not to use the SR to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
Fitscope does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Fitscope do so. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. Fitscope is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Fitscope reserves the right (but is under no obligation) to remove posted feedback or information that, in Fitscope’s sole judgment, violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify Fitscope of any error or inaccurate statement in your feedback results, including the SR, and that if you do not do so, Fitscope may rely on the accuracy of such information.
4. Permitted Uses
The Fitscope Platform and all Content are made available for your personal, noncommercial use, provided that Pros may use the Fitscope Platform to promote and receive payment for services that they perform at Sessions, so long as the Pro is in full compliance with these Terms. You agree to abide by any posted limitations relating to use, reproduction or dissemination of any Content. Any use of the Fitscope Platform, including, without limitation, the Sites, Content or any part of any of the foregoing, in any way not expressly permitted by these Terms is prohibited, and may be actionable under the law.
The Fitscope Platform is controlled within the United States of America and are directed to individuals residing in the United States. Those who choose to access the Fitscope Platform from locations outside of the United States do so on their own initiative, and are responsible for compliance with local laws if and to the extent local laws are applicable. Fitscope does not represent that the Fitscope Platform is appropriate outside the United States of America. Fitscope reserves the right to limit the availability of the Fitscope Platform for any person, geographic area or jurisdiction at any time in its sole discretion.
You are responsible for your use of the Fitscope Platform. You agree that the following actions, without limitation, are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and Fitscope reserves the right to determine what types of conduct it considers to be inappropriate use of the Fitscope Platform or any part thereof. In the case of inappropriate use, Fitscope may take such measures as it determines in its sole discretion. By way of example, and not as limitation, you agree that you will not:
- use the Marketplace Services for any purpose other than obtaining or offering health and fitness services via Sessions; no other services may be obtained or offered in connection with the Marketplace Services;
- schedule a Session outside of the Fitscope Platform with any Pro or Client that you were introduced to through the Fitscope Platform;
- pay any Pro or accept payment from Clients outside of the Fitscope Platform;
- display any disrespectful or inappropriate behavior at any time during any Session;
- contact a Client if you are a Pro or contact a Pro if you are a Client for any reason other than for reasons that pertain to a Session that was scheduled, provided that a Client may only contact a Pro, and a Pro may only contact a Client, through the app messaging function.
- transfer or sell any Session; Sessions may not be transferred to other individuals and may not be sold;
- violate any law or regulation or use the Fitscope Platform for any improper purpose or to take any action in violation of any law or regulation;
- violate or infringe any other user of the Fitscope Platform or third party‘s intellectual property, privacy, publicity, or other legal or contractual rights;
- use the Fitscope Platform to transmit, distribute, post, or submit any information concerning any other person or entity, including without limitation, photographs or personal contact information of others, without their permission, other than with respect to reviews that you may leave for Pros or Clients through the Fitscope Platform;
- transmit anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;
- send unsolicited or unauthorized advertising or commercial communications, such as spam;
- transmit any malicious code, computer viruses, cancel bots, Trojan horses, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology;
- stalk, harass, defame, threaten, or harm another individual;
- impersonate or misrepresent your identity or your affiliation with any person or entity;
- create a false impression that you are endorsed by, partnering with, or acting on behalf of or for the benefit of Fitscope;
- use any automated devices, bots, agents, crawl, scraping, scripts, intelligent search or any similar means of access to Content or other information or materials available through the Fitscope Platform;
- systematically retrieve data or other Content from the Fitscope Platform to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual or automated methods (although operators of public search engines may use spiders to index materials from the Fitscope Platform for the sole purpose of creating publicly available searchable indices of the materials, and Fitscope reserves the right to revoke these exceptions either generally or in specific cases);
- use automated methods to use the Fitscope Platform in a manner that sends more requests to the Fitscope servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;
- interfere with or damage, or attempt to interfere with or damage, the Fitscope Platform or any functionality thereof, in any way, including, without limitation, by using any device, software or routine or the like, or attempt to access any area of the Fitscope Platform to which your access is not authorized;
- register for more than one Account, register for an Account on behalf of an individual other than yourself, or transfer the Account to another party without our consent;
- use the Fitscope Platform to recruit or otherwise solicit any user to join third party services or websites that are competitive to Fitscope, without Fitscope‘s prior written approval;
- use, display, mirror, or frame the Fitscope Platform or any individual element within the Fitscope Platform, Fitscope‘s name, any Fitscope trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Fitscope‘s express written consent;
- copy, adapt, modify, prepare derivative works based upon, distribute, aggregate, license, sublicense, sell, resell, transfer, assign, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Fitscope Platform or its Content, except as expressly permitted in these Terms;
- access, tamper with, or use non-public areas of the Fitscope Platform, Fitscope‘s computer systems, or the technical delivery systems of Fitscope‘s providers;
- falsify or delete any author attributions, legal or other notices, or proprietary designations or labels of origin or source;
- attempt to probe, scan, or test the vulnerability of any Fitscope system or network or breach any security or authentication measures;
- access the Fitscope Platform for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, including, but not limited to, building a competitive product or service;
- take any action that imposes an unreasonable or disproportionately large burden on the Fitscope Platform‘s infrastructure or that otherwise may adversely affect performance of the Fitscope Platform or restrict any other user or Fitscope from using or enjoying the Fitscope Platform;
- harvest or otherwise collect information about others, including, without limitation, email addresses or other contact information, without their consent, or hack or violate any security measures of the Fitscope Platform;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Fitscope or any of Fitscope‘s providers or any other third party (including another user) to protect the Fitscope Platform;
- attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Fitscope Platform, except as permitted by applicable law;
- engage in any other action that, in the judgment of Fitscope, exposes it or any third party to potential liability or detriment of any type; or
- cause, advocate, encourage, or assist any third party in doing any of the foregoing.
You acknowledge that Fitscope has no obligation to monitor your access to or use of the Fitscope Platform, but has the right to do so for any purpose, in its sole discretion. Fitscope may at its discretion investigate and prosecute violations of these Terms to the fullest extent of the law. Fitscope may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms.
5. User Content
The Fitscope Platform may include features that enable you to send information, materials, emails and other types of messages or notices to Fitscope or to others users of the Fitscope Platform, create a profile in connection with your Account accessible to other users of the Fitscope Platform or the public, submit reviews, opinions, biographical information and other content that others may be able to access or view, or to make other information, materials or submissions available on or through the Fitscope Platform (“User Content”). User Content shall be deemed part of the defined term “Content” for purposes of these Terms. You retain the rights you hold in your User Content. All User Content made available on the Fitscope Platform is strictly that of the originating author or user, who shall be solely responsible for such content. Fitscope may or may not screen, review, monitor or respond to any User Content submitted by users, and is not responsible for the accuracy or truthfulness of any User Content. However, Fitscope reserves the right to edit, block, or remove any User Content at any time for any reason, in its sole discretion. Use of or reliance on User Content is entirely at your own risk.
FITSCOPE HAS NO OBLIGATION TO SCREEN OR MONITOR ANY USER CONTENT AND DOES NOT GUARANTEE THAT ANY CONTENT COMPLIES WITH THESE TERMS OR IS SUITABLE FOR ALL USERS OF THE FITSCOPE PLATFORM.
By submitting User Content, you grant Fitscope a royalty-free, perpetual, irrevocable, worldwide license, without further compensation, to use, host, store, reproduce, modify, create derivative works, communicate, publish, publicly perform, publicly display, and distribute such User Content for any purposes, including, without limitation to advertise and promote Fitscope or the Fitscope Platform. You warrant and covenant that your User Content is true, your own original work, and does not violate any applicable law, infringe or violate any other person’s or entity’s rights, or require any third party releases or any payment to a third party.
6. Ownership and Proprietary Rights
You acknowledge and agree that, as between Fitscope and you, all right, title, and interest in and to the Fitscope Platform, including, without limitation, any patents, copyrights, trademarks, trade secrets, inventions, know-how, and all other intellectual property rights, are owned exclusively by Fitscope, its licensors, related entities and other content providers, and are protected by United States intellectual property and other applicable laws.
You acknowledge and agree that, as between Fitscope and you, all Content, other than the User Content, available on or through the Fitscope Platform shall remain the exclusive property of Fitscope and Fitscope shall retain all rights with respect to same, including, without limitation, the sole right to implement, use, publish and/or publicly disseminate the Content. You agree that you will not use any Content other than as permitted herein, without Fitscope‘s prior written consent.
a. Copyright: All Content (other than User Content) is the copyright and property of Fitscope, its licensors, related entities or content providers and is protected by U.S. and international copyright laws. Other than with respect to your own User Content, you agree not to copy, modify, distribute, transmit, republish, sell, resell or exploit, for any purpose, any portion of the Fitscope Platform, including, without limitation, the Content other than as expressly authorized by Fitscope in writing.
b. Trademarks: The trademarks, service marks, logos, slogans, trade names and trade dress used on the Fitscope Platform is proprietary to Fitscope, its licensors, related entities, or content providers. Third party trademarks referenced on the Fitscope Platform do not constitute or imply affiliation with, endorsement, or recommendation of Fitscope by the respective trademark owners.
7. Copyright Infringement Claims Policy
If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide the following information to our Copyright Agent:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- A description of the copyrighted work or other intellectual property that you claim has been infringed;
- A description of where the material that you claim is infringing is located on the Fitscope Platform (providing URL(s) in the body of the communication is the best way to help Fitscope locate content quickly);
- Your name, address, telephone number and e-mail address;
- A signed statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
Fitscope‘s copyright agent can be reached as follows:
723 S Casino Center Blvd., 2nd Fl
Las Vegas, NV 89101
Attn: Copyright Infringment
Email: firstname.lastname@example.org (Please put “Copyright Infringement” in the subject line)
Fitscope may, in its sole discretion, disable and/or terminate use of the Fitscope Platform by users who infringe the intellectual property of others, including, without limitation, repeat offenders.
The Fitscope Platform may contain advertisements, posts and links to websites operated by other parties. The Fitscope Platform provide these as a convenience, and your interaction with or use of these advertisements, posts, links and other websites is at your own risk. The advertisements, posts and linked websites are not under the control of Fitscope which is not responsible for their content or privacy practices. Such advertisements, posts or links or references to other parties‘ products or services do not imply Fitscope‘s endorsement of any other party or its information, material, products or services or website. Fitscope disclaims all liability with regard to your access to and use of such information, material, products or services or transactions with such linked websites or other parties. You acknowledge and agree that Fitscope is not responsible or liable, directly or indirectly, for any damage, loss or other claim caused or alleged to be caused by or in connection with, access to, use of or reliance on any content available on or through any other website or resource.
10. Suspension and Termination
Fitscope reserves the right, at its sole discretion, immediately and without notice, to suspend, discontinue, or terminate your access to the Fitscope Platform or any portion thereof for any reason, including, without limitation, any breach by you of these Terms. You agree that Fitscope shall not be liable to you or any third party for any such suspension, discontinuance or termination. If you breach or violate any of these Terms, your permission to access or use the Fitscope Platform is automatically and immediately revoked and you may not continue using the Fitscope Platform or participate in any Session.
11. Disclaimers and Limitations of Liability
A. General Disclaimers
FITSCOPE PROVIDES THE FITSCOPE PLATFORM UNDER NO WARRANTY ON AN “AS IS” AND “AS AVAILABLE” BASIS AND “WITH ALL FAULTS.” FITSCOPE AND ITS LICENSORS, AND THEIR RESPECTIVE OFFICERS, MEMBERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, AGENTS, REPRESENTATIVES AND SUCCESSORS AND ASSIGNS (“FITSCOPE PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, WITH RESPECT TO THE FITSCOPE PLATFORM, ANY SESSION, OR ANY PART OF ANY OF THE FOREGOING, AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERACHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, UNINTERRUPTED USE, ACCURACY, COMPLETENESS, OPERABILITY AND/OR NON-INFRINGEMENT.
NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR WARRANTY BY FITSCOPE OR ITS LICENSORS OF THE SAFETY, SUITABILITY, FUNCTIONALITY OR USEFULNESS OF THE FITSCOPE PLATFORM, ANY SESSION, ANY PART OF ANY OF THE FOREGOING, OR THAT ANY DATA IMPLEMENTED OR ACCESSED THROUGH THE FITSCOPE PLATFORM WILL BE COMPLETE, ACCURATE OR FREE FROM ERRORS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE THAT NONE OF THE FITSCOPE PARTIES IS RESPONSIBLE FOR OR INDEPENDENTLY VERIFIES ANY USER CONTENT, USER STATEMENTS OR COMMUNICATIONS MADE THROUGH THE FITSCOPE PLATFORM OR OUTSIDE OF THE FITSCOPE PLATFORM, OR THIRD PARTY MATERIALS ACCESSED OR RECEIVED THROUGH THE FITSCOPE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FITSCOPE, THROUGH THE FITSCOPE PLATFORM OR THROUGH ANY CLIENT, PRO, OTHER USER OF THE FITSCOPE PLATFORM OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE FITSCOPE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THESE TERMS. YOUR USE OF THE FITSCOPE PLATFORM AND ANY MATERIAL OR INFORMATION ACCESSED, RECEIVED OR OTHERWISE OBTAINED THROUGH THE USE OF THE FITSCOPE PLATFORM IS AT YOUR OWN RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSSES, DEFINED BELOW, ARISING FROM SAME.
B. Disclaimers Regarding Your Communications, Interactions and Dealings with Users
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS, INTERACTIONS AND DEALINGS WITH OTHER USERS OF THE FITSCOPE PLATFORM AND WITH OTHER INDIVIDUALS OR ENTITIES THAT YOU COMMUNICATE, INTERACT OR DEAL WITH THROUGH THE FITSCOPE PLATFORM OR AS A RESULT OF YOUR USE OF THE FITSCOPE PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, PROS, AND OTHER THIRD PARTIES. FITSCOPE IS NOT OBLIGATED TO CONDUCT REVIEWS, VERIFICATIONS, BACKGROUND CHECKS OR OTHER SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES) OF PROS OR CLIENTS. ACCORDINGLY, YOU AGREE TO TAKE ALL REASONABLE PRECAUTIONS AND TO CONDUCT WHATEVER INVESTIGATION YOU FEEL NECESSARY OR APPROPRIATE BEFORE PROCEEDING WITH SUCH COMMUNICATIONS, INTERACTIONS OR DEALINGS. FITSCOPE IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OF ANY KIND OR NATURE INCURRED AS THE RESULT OF SUCH COMMUNICATIONS, INTERACTIONS OR DEALINGS. FITSCOPE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE CONDUCT, ACTIONS, INTEGRITY, OR RESPONSIBILITY OF OTHER USERS OF THE FITSCOPE PLATFORM OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE FITSCOPE PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, PROS, AND OTHER THIRD PARTIES, AND FITSCOPE DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. FITSCOPE HAS NO CONTROL OVER, AND NO RIGHT TO CONTROL, USERS OF THE FITSCOPE PLATFORM, OR ANY OTHER INDIVIDUAL OR ENTITY THAT YOU MAY COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE FITSCOPE PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, PROS, AND OTHER THIRD PARTIES, OR THEIR ACTIVITY OR CONDUCT ON OR OUTSIDE OF THE FITSCOPE PLATFORM. WITHOUT LIMITING ANY OF THE FOREGOING, FITSCOPE DISCLAIMS ANY RESPONSIBILITY OR LIABILITY ASSOCIATED WITH THE FITSCOPE PLATFORM OR ANY ACTIVITY OCCURING OUTSIDE OF THE FITSCOPE PLATFORM, INCLUDING, WITHOUT LIMITATION, CONDUCT OCCURING DURING SESSIONS OR ANY OTHER ASPECT OF ANY SESSIONS. FITSCOPE EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY CLIENT, PRO, OTHER USER OF THE FITSCOPE PLATFORM OR THIRD PARTY.
C. Limitations of Liability
EXCEPT FOR INSTANCES OF GROSS NEGLIGENCE, INTENTIONAL WRONGDOING, WILLFUL, MALICIOUS OR WANTON MISCONDUCT OR WHERE OTHERWISE REQUIRED BY LAW, UNDER NO CIRCUMSTANCE SHALL ANY OF THE FITSCOPE PARTIES HAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON FOR OR ON ACCOUNT OF (A) ANY CLAIMS, LOSSES, LIABILITIES, DAMAGES, JUDGMENTS, INTEREST, FINES, PENALTIES, COSTS AND EXPENSES OF ANY KIND OR NATURE INCLUDING REASONABLE ATTORNEY FEES AND COSTS (COLLECTIVELY, “LOSSES”) SUSTAINED, ASSESSED OR IMPOSED ON YOU OR ANY OTHER PERSON, OR (B) ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS, OR ANY INTERRUPTION OF BUSINESS) WHETHER BASED IN TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY, STATUTORY LIABILITY OR OTHERWISE, WHICH ARISE OUT OF OR RELATE TO OR ARE IN CONNECTION WITH THE FITSCOPE PLATFORM, ANY SESSION, OR ANY PART OF THE ANY OF THE FOREGOING, INCLUDING WITHOUT LIMITATION LOSSES CAUSED BY DISRUPTION OF THE FITSCOPE PLATFORM, DELETION OF YOUR DATA, UNAUTHORIZED ACCESS TO THE FITSCOPE PLATFORM OR YOUR PERSONAL OR FINANCIAL INFORMATION, COMPUTER MALFUNCTION, MALICIOUS CODE THAT MAY BE TRANSMITTED ON OR THROUGH THE FITSCOPE PLATFORM, ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE FITSCOPE PLATFORM OR PARTICPATION IN ANY SESSION, OR ANY OTHER LOSSES INCURRED BY YOU OR ANY OTHER PERSON, WHETHER OR NOT FITSCOPE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES.
Because some jurisdictions, including the State of New Jersey, do not allow for certain limitations with respect to duration or disclaimer of warranties, or exclusion or limitation of liability for certain types of damages, portions of this Section 11 may not apply to you. IF, FOR ANY REASON, ANY OF THE FOREGOING LIMITATIONS IS FOUND TO BE INVALID OR UNENFORCEABLE AS FINALLY DETERMINED BY A COURT OF LAW, THE SOLE AND TOTAL LIABILITY OF ANY OF THE FITSCOPE PARTIES SHALL BE LIMITED, IN THE AGGREGATE, TO THE LESSER OF: (1) THE AMOUNT OF COMMISSION THAT FITSCOPE RECEIVED FOR YOUR USE OF THE FITSCOPE PLATFORM DURING THE TWELVE MONTH PERIOD PRIOR TO THE CAUSE OF ACTION GIVING RISE TO THE CLAIM; OR (2) $1,000. THE FOREGOING LIMITATION OF LIABILITY IS FAIR AND REASONABLE UNDER THE CIRCUMSTANCES AND IN CONSIDERATION FOR THE RIGHTS GRANTED HEREUNDER.
12. Disputes with other Users
BY USING THE FITSCOPE PLATFORM, YOU AGREE THAT ANY LEGAL REMEDY OR LIABILITY THAT YOU SEEK TO OBTAIN FOR ACTIONS OR OMISSIONS OF OTHER USERS OF THE FITSCOPE PLATFORM OR WITH OTHER INDIVIDUALS OR ENTITIES THAT YOU COMMUNICATE, INTERACT OR DEAL WITH AS A RESULT OF YOUR USE OF THE FITSCOPE PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLIENTS, PROS, AND OTHER THIRD PARTIES, WILL BE LIMITED TO A CLAIM AGAINST THE PARTICULAR INDIVIDUAL OR ENTITY THAT CAUSED YOU HARM AND YOU AGREE NOT TO ATTEMPT TO IMPOSE LIABILITY ON, OR SEEK ANY LEGAL REMEDY FROM FITSCOPE WITH RESPECT TO SUCH ACTIONS OR OMISSIONS.
In the event of a dispute between you and any other user of the Fitscope Platform or with other individuals or entities that you communicate, interact or deal with as a result of your use of the Fitscope Platform, including, but not limited to, Clients, Pros, and other third parties, you understand and agree that Fitscope is under no obligation to become involved and you hereby release and discharge the Fitscope Parties from all Losses of every kind or nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such dispute. You expressly waive California Civil Code § 1542, if you are a California resident, or any other statute of similar import or effect, that otherwise may exclude unknown claims from this release, as follows: “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.”
You agree to indemnify, hold harmless and defend the Fitscope Parties from and against any and all Losses arising out of, relating to, resulting from or in connection with: (a) your breach or violation of any term, condition, obligation, representation, warranty or covenant set forth in these Terms, violation of any applicable law or violation of the rights of Fitscope or any third party damaged by your actions or by the actions of anyone else accessing the Account; (b) any information (including your User Content or any other content) that you submit, post, or transmit on or through the Fitscope Platform; or (c) any activity that occurs in connection with use of the Account, your activity and conduct in connection with any Session, or your dispute with any other user of the Fitscope Platform or with other individuals or entities that you communicate, interact or deal with as a result of your use of the Fitscope Platform, including, but not limited to, Clients, Pros, and other third parties (each of the foregoing for the purposes of this Section 13, a “Claim”). Fitscope shall have the unilateral right to undertake the control and defense and settlement or other disposition of any Claim hereunder with counsel of its choice with all attorney fees and costs paid or reimbursed by you on demand, provided however that (i) you at your own expense may participate with Fitscope in the defense of any Claim, and (ii) you shall not stipulate or consent to judgment or settle any Claim without Fitscope‘s prior written consent. You shall provide Fitscope with reasonable cooperation in connection with any such defense.
14. Notice Required by California Law
Pursuant to California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights notice: The name, address and telephone number of the provider of this service is Fitscope LLC, 723 S Casino Center Blvd., 2nd Fl, Las Vegas, NV 89101. Complaints regarding the service or requests to receive further information regarding use of this service may be sent to the above address. The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite S202, Sacramento, CA 95834 or by telephone at (800) 952-5210.
15. Arbitration, Governing Law and Dispute Resolution
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT OUTLINES CERTAIN RIGHTS THAT YOU ARE WAIVING OR LIMITING BY USING THE FITSCOPE PLATFORM. REMEMBER THAT USE OF THE FITSCOPE PLATFORM CONSTITUTES ACCEPTANCE OF THESE TERMS, INCLUDING THE PROVISIONS RELATING TO GOVERNING LAW AND DISPUTE RESOLUTION. THIS SECTION WAIVES THE FOLLOWING RIGHTS THAT YOU MIGHT OTHERWISE HAVE:
- THE RIGHT TO HAVE THE LAW OF ANY JURISDICTION, OTHER THAN THAT OF THE STATE OF CALIFORNIA, APPLY TO A DISPUTE BETWEEN YOU AND FITSCOPE ARISING OUT OF OR RELATING TO THESE TERMS OR THE FITSCOPE PLATFORM.
- THE RIGHT TO HAVE A JURY DECIDE ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE FITSCOPE PLATFORM.
- THE RIGHT TO HAVE A COURT DECIDE ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR THE FITSCOPE PLATFORM, UNLESS YOUR CLAIM QUALIFIES FOR SMALL CLAIMS COURT.
- THE RIGHT TO PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, INCLUDING AS A CLASS REPRESENTATIVE OR CLASS MEMBER.
- THE RIGHT TO JOIN OR CONSOLIDATE CLAIM(S) INVOLVING YOU WITH CLAIMS INVOLVING ANY OTHER PERSON.
- THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION.
Agreement to Arbitrate. You agree that in the event of any dispute, claim, question, or disagreement arising out of or relating to the Fitscope Platform, this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Consumer Arbitration Rules and Supplementary Procedures for Consumer-Related Disputes in effect at the time the arbitration is initiated (“AAA Rules”), except as modified herein (“Arbitration Agreement”). Opting out of Your Agreement to Arbitrate. You may opt out of your Arbitration Agreement by providing Fitscope with notice of your desire to opt-out, by emailing Fitscope at email@example.com within thirty (30) days of agreeing to these Terms. Such notice must contain the subject line “Arbitration Opt-Out” and the email must include your full name and a clear statement that you are exercising your option to opt out of the requirements to arbitrate that are specified in these Terms. If you exercise your option to opt-out of the Arbitration Agreement pursuant to this section: (a) the provisions of this Section 15.A will not apply to you, but all other provisions of these Terms will apply to you, including, without limitation, the provisions of Section 15.B below; and (b) you agree that the sole and exclusive jurisdiction and venue for your claims arising out of or relating to the Fitscope Platform, this Agreement, or the breach thereof will be the federal of state courts located in Los Angeles, California.
Arbitration Procedure. The arbitration shall take place before a single arbitrator. The place of arbitration shall be in the county where you reside, unless another place is agreed upon by all parties. If your claim is for $10,000 or less, the arbitration will be conducted based solely on written documents submitted to the arbitrator, unless you request a hearing or the arbitrator requires one. Either party may attend any hearing via telephone, unless the arbitrator requires the parties to be physically present. Except as may be required by law, no party nor the arbitrator may disclose the existence or results of, the content of any hearings for, or the content of any documents or pleadings submitted or produced in connection with any arbitration proceeding hereunder without the prior written consent of all parties.
Arbitration Rewards. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Arbitration Costs. Each party shall bear the filing, administration and arbitrator fees as required by the AAA Rules, provided that if your position is substantially upheld by the arbitrator, Fitscope will reimburse you for your filing, administration and arbitrator fees. Arbitration Alternative: Regardless of whether you opt-out of your obligation to arbitrate, if your claims qualify for small claims court, you may assert your claims in small claims court, as long as the claims stay in small claims court and progress solely on an individual basis.
B. Governing Law and Dispute Resolution
Governing Law: This Agreement and all matters arising out of, relating to or in connection with this Agreement or the relationship of the parties hereunder shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice of law or conflict of law rules or provisions, provided that all matters relating to arbitration, shall governed by the Federal Arbitration Act. Waiver of Certain Types of Actions: You agree that to the fullest extent permitted by law: (i) no claims by you shall be joined with the claims of any other person and you agree not to participate in any claim brought by other persons, whether in arbitration or litigation; (ii) YOU HAVE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE LITIGATED ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (iii) you have no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other person; and (iv) you have no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general action. To the extent that the foregoing sentence or any portion thereof is found to be unenforceable and severed from these Terms, and if such a finding allows for your claims to brought on non-individual, class action, collective action, representative or private attorney general basis, you and Fitscope agree that such actions will not be decided in arbitration and must be litigated in a civil court of competent jurisdiction. Waiver of Jury Trial: YOU AND FITSCOPE HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO A TRIAL BY JURY WITH REGARD ANY DISPUTE, CLAIM, QUESTION, OR DISAGREEMENT ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.
16. Other Provisions