FITSCOPE Terms of Service

LAST UPDATED: October 15, 2018

 

PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ACCESSING OR USING ANY FITSCOPE APPLICATIONS, CONTENT OR WEBSITES. Fitscope LLC (“Fitscope,” “we,” or “us”) provides digitally accessible fitness services and content. This End User License Agreement and Terms of Service (the “Agreement” or “Terms”) is a binding contract between you, an individual user (“you”) and Fitscope and governs your use and access of Fitscope.com (the “Fitscope Site” or “Site”) and related mobile applications (“Fitscope Mobile Apps”), desktop and platform applications (collectively “Applications”). The Site and Applications, along with the fitness service and content made available therein are referred to herein as the “Fitscope Service” or “Service”). By registering as a member or by accessing or using the Fitscope Service in any way, you accept this Agreement. You should also read and understand the Fitscope Privacy Policy, which is incorporated by reference into and made a part of this Agreement. This Agreement also includes any additional payment terms and other requirements set forth on the download or purchase page of marketplaces through which you may purchase or download Applications or access the Service. These marketplaces may have additional terms, conditions and usage rules that govern your access to and use of the Applications and/or the Fitscope Service.

Prior to using the Fitscope Service, it is important for you to know and understand that by accessing and/or using the Service through any means, you are agreeing to accept certain liability limitations and legal and health disclaimers, which we further explain throughout this Agreement. In other words, your use of the Fitscope Service is at your own risk, and we do not assume any liability, or make any warranties of any kind, express or implied, with respect to the Service or your access and use of the Service. If you have any questions or concerns regarding the terms or conditions herein, please email us at contact@fitscope.com.

IF YOU DO NOT ACCEPT AND AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, INCLUDING OUR PRIVACY POLICY, LIMITATIONS OF LIABILITY, WARRANTY DISCLAIMERS AND GENERAL HEALTH AND LEGAL DISCLAIMERS, DO NOT ACCESS OR USE THE APPLICATIONS, SITE OR THE FITSCOPE SERVICE.

We may amend this Agreement from time to time. If the changes include material changes that affect your rights or obligations, we will notify you of the changes by reasonable means. You acknowledge that an in-app message or an email to the email address provided at registration which notifies you of such changes shall constitute reasonable means. Your continued use of the Applications, Site or Service after we post any amendments to this Agreement will signify your acceptance of such amendments. If you do not agree with any amendment, you must discontinue your access to and use of the Service.
By using the Service, you consent to receiving this Agreement in electronic form.

 

HEALTH WARNING AND LIABILITY DISCLAIMER

YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING THIS OR ANY OTHER EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING.

NOTHING STATED OR POSTED ON THE FITSCOPE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE.

YOUR USE OF THE FITSCOPE SERVICE IS AT YOUR OWN RISK.

PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER IN SECTION 2 BELOW BEFORE COMMENCING YOUR USE OF THE SERVICE.

FITSCOPE SHALL NOT BE LIABLE FOR ANY LIABILITY, OF ANY KIND, RESULTING FROM THE USE OF THE FITSCOPE SERVICE.

 

Content

1. Who May Use the Fitscope Service
2. Service and Membership
3. Professional Advice and Medical Disclaimer
4. Your Representations and Warranties as a Member
5. General Disclaimers
6. Limitation of Liability
7. Privacy
8. Payments
9. Cancellation; Term; Account Deletion
10. Community Guidelines; User Content
11. Code of Conduct and Prohibited Activities
12. Indemnification
13. License to Use the Fitscope Service
14. Third Party Links and Content
15. Intellectual Property
16. Copyright / DMCA Policy
17. General Provisions

 

1. Who May Use the Fitscope Service

AGE REQUIREMENT: You must be at least 18 years old to use the Fitscope Service.

NOTICE TO PARENTS AND GUARDIANS: You are responsible for monitoring and supervising your child’s use of the Fitscope Service. If your child is using the Fitscope Service without your express consent and is under 18, please contact us immediately so that we can disable his or her access. If you have questions about the Fitscope, please contact us at contact@fitscope.com.

 

2. The Service

A. Grant of License. Subject to your compliance with the terms and conditions of this Agreement, Fitscope grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license, to access and use the most current available versions of the Site, Applications and Service for your lawful, personal and non-commercial use.

B. Available Content. The Service and the content provided therein is available for users of various skill levels, for a variety of activities, and for varying durations. Content may not always be available and is subject to change at any time with or without notice and without any liability to you.

C. Membership. While you may enjoy certain content and features without registering with Fitscope, to receive the full benefits of the Service, you must register as a member by providing a user name, password, valid email address and valid credit card information. You must provide complete and accurate registration information to Fitscope and notify us if your information changes. In creating a user name, you may not use someone else’s name, a name that violates any third party right, or a name that is obscene or otherwise objectionable.

D. Non-commercial Use. Use of the Site and Service is for personal, non-commercial use only. Members may not use the Service in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services; or (ii) for commercial purposes. Users of the Site may not use any information obtained from the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent. Organizations, companies, and/or businesses may not use the Service or the Site for any purpose unless expressly authorized by Fitscope. If you wish to inquire about possible commercial use, please contact us at contact@fitscope.com. Fitscope may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Site or the Service.

E. Account Security. You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you are using a computer that others have access to, you must log out of your account after using the Fitscope Service. If you become aware of any unauthorized access to your account, you must change your password and notify us immediately at contact@fitscope.com.

F. Fitscope may change, modify, add, remove, suspend, cancel or discontinue any aspect of it subscriptions including the functionality, content, and/or availability of any features of such subscriptions at any time in Fitscope’s sole discretion.

 

3. Professional Advice and Medical Disclaimer.

YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PROFESSIONAL BEFORE STARTING THIS OR ANY OTHER EXERCISE OR NUTRITION PROGRAM TO DETERMINE IF IT IS RIGHT FOR YOUR NEEDS. THIS IS PARTICULARLY TRUE IF YOU (OR YOUR FAMILY) HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, OR IF YOU HAVE EVER EXPERIENCED CHEST PAIN WHEN EXERCISING, SMOKE, HAVE HIGH CHOLESTEROL, OR HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN PHYSICAL ACTIVITY. DO NOT USE THE FITSCOPE SERVICE IF YOUR PHYSICIAN OR HEALTH CARE PROVIDER ADVISES AGAINST IT. IF YOU EXPERIENCE FAINTNESS, DIZZINESS, PAIN OR SHORTNESS OF BREATH AT ANY TIME WHILE EXERCISING, YOU SHOULD STOP IMMEDIATELY.

THE FITSCOPE SERVICE OFFERS HEALTH AND FITNESS INFORMATION AND IS DESIGNED FOR INFORMATIONAL PURPOSES ONLY. NOTHING STATED OR POSTED ON THE FITSCOPE SITE OR AVAILABLE THROUGH ANY FITSCOPE SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL, PROFESSIONAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH OR NUTRITION CARE, TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE. YOU SHOULD NOT RELY ON ANY INFORMATION ON THE FITSCOPE SERVICE AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT EVER DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE SERVICE. THE USE OF ANY INFORMATION PROVIDED ON THE SERVICE IS SOLELY AT YOUR OWN RISK.

IF YOU ARE IN THE UNITED STATES AND THINK YOU ARE HAVING A MEDICAL OR HEALTH EMERGENCY, CALL YOUR HEALTH CARE PROFESSIONAL, OR 911, IMMEDIATELY.

THE FITSCOPE SITE IS CONTINUALLY UNDER DEVELOPMENT AND FITSCOPE 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 GENERAL HEALTH, FITNESS AND ADVICE. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION CONTAINED ON THE FITSCOPE SITE WILL ALWAYS INCLUDE THE MOST RECENT DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL.

 

4. Your Representations and Warranties as a Member

In becoming a Member of Fitscope with the intent of using the Fitscope Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise, including without limitation pregnancy; or (B) your physician has specifically approved of your use of the Fitscope Service. You further affirm that you will not access the Service from within the European Economic Area.

 

5. General Disclaimers

Fitscope provides the Fitscope Service on an “as is” and “as available” basis. You therefore use the Fitscope Service at your own risk.

Fitscope expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Fitscope makes no representations or warranties:
o That the Fitscope Service, or any particular fitness program is suitable for you;
o Regarding the adequacy or safety of the Fitscope Service for any particular user;
o That the Fitscope Service will meet your personal needs;
o That the Fitscope Service will be permitted in your jurisdiction;
o That the Fitscope Service will be uninterrupted or error-free;
o Concerning any content submitted by any member;
o Concerning any third party’s use of content that you submit;
o That Fitscope will continue to support any particular feature of the Fitscope Service; or
o Concerning sites and resources outside of the Fitscope Service, even if linked to from the Fitscope Service.
Fitscope reserves the right to modify the Fitscope Service. You are responsible for providing your own access (e.g., computer, mobile device, Internet connection, etc.) to the Fitscope Service. Fitscope has no obligation to screen or monitor any content and does not guarantee that any content made available on the Fitscope Service complies with this Agreement or is suitable for all users. Fitscope shall not be responsible for loss or corruption of data, and hereby waives all claims with respect to damage to Your computer system, internet access, download or display device. To the extent that a secondary party may have access to or view Fitscope content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in this Agreement. To the extent any disclaimer or limitation of liability in this Agreement does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of fourteen (30) days after the date on which you first used the Fitscope Service, and no warranties shall apply after such period.

 

6. Limitation of Liability

To the fullest extent permitted by law: (i) in no event shall Fitscope, nor its affiliates, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and (ii) Fitscope’s, and its affiliates’ total liability to you shall not exceed the amounts paid by you to Fitscope over the twelve (12) months preceding your claim(s).

IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO OBTAIN OR ACCESS THE SERVICE, SITE OR APPLICATIONS.

Fitscope Coaching Service
The Fitscope coaching service is intended solely as a general fitness informational means by which Members can communicate with Fitscope trainer coaches. In selecting our trainer coaches, we endeavor to source only those coaches who can demonstrate a minimum of two (2) years’ experience in the fitness field, with valid professional experience at a reputable fitness institution or gym. In the course of providing coaching advice, our coaches may occasionally answer incidental nutritional questions based on their own personal experience. FITSCOPE DOES NOT REPRESENT IN ANY WAY THAT ANY NUTRITIONAL OR FITNESS ADVICE PROVIDED BY A TRAINER COACH CONSTITUTES QUALIFIED EXPERT ADVICE.

Fitscope takes care to instruct its coaches never, under any circumstance, to provide advice that could be construed as expert advice, and we in no way encourage or endorse such behavior from our coaches.

If you encounter a Fitscope coach who is providing expert advice in violation of these principles, please contact us immediately at contact@fitscope.com. You should always seek expert professional advice in nutritional and health matters, and should not rely on any opinions expressed through the Fitscope Service as expert opinions or advice.

 

7. Privacy

Your privacy rights are set forth in our Privacy Policy, which forms a part of this Agreement. Please review the Privacy Policy to learn about:
o What information we may collect about you;
o What we use that information for; and
o When and with whom we share that information.
CONSENT TO EMAIL: When you become a Member, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to the Service, such as administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us or third party partners.

 

8. Payments

Auto-renewal and billing; Subscription Fees; Free Trial Terms.

A. Subscription. Unless you have selected a free version of a Fitscope Mobile App, the Fitscope Service is a paid, auto-renewing subscription service. You will be charged the stated subscription amount for the subscription period upon completion of your registration and submission of your payment information unless your membership includes a free trial period.

B. Auto-Renewal. You are agreeing that upon expiration of the initial subscription period, your subscription will automatically renew for successive periods. You agree to automatic (recurring) billing, and agree to pay the charges made to your account in connection therewith. You will be billed at the then-current applicable subscription price plus any applicable taxes. We will process payment for any renewal subscriptions using the same billing cycle as your current subscription. Subscription fees may change at any time, to the fullest extent permitted under applicable law. Your Subscription, and monthly billing of your account, will continue indefinitely until cancelled by you.

C. Free Trials. If you accepted an offer with a Free Trial, your Fitscope membership begins when you have completed the Free Trial sign-up process (i.e., when we collect your personal and payment information). At the end of your 14-day Free Trial, you will begin to be billed automatically each month (about every 30 days) until you cancel. Once we begin to bill you, cancellations take effect starting at the end of your current billing period, meaning there are no partial month refunds or credits. If you cancel your Free Trial membership at anytime in the first fourteen days (i.e., during the Free Trial period), you will not be charged.

D. Pricing and Special Offers. The pricing of our Services may vary periodically. We cannot guarantee that the price of your Subscription is the lowest available, or historically lowest or best, price. You will be charged in accordance with the billing terms you agreed to at the time you signed up. At certain times, we may offer special promotional offers (“Special Offers”) that are billed at a discounted rate. These offers may have a different Free Trial period length, or no Free Trial period. In these cases, you will begin to be billed at the time payment information is collected, or, if a Free Trial is being offered, at the end of the special Free Trial period. Note: in these cases, our typical 14-day Free Trial will not apply. These terms will always be disclosed on the payment screen at the time of sign up, prior to our acceptance of payment. In all instances, you will continue to be automatically billed monthly after your Free Trial ends (or immediately if there is no Free Trial).

E. Intentionally Omitted.

F. Intentionally Omitted.

G. Paused Subscriptions. In circumstances in which you elect to pause your subscription, your account will automatically reactivate following the time period that you specified at the time of pausing, and we will then automatically start to bill you again. You will be responsible for payment upon reactivation regardless of whether or not you receive a reminder notice regarding the expiration of your paused status. By electing to pause your subscription, you agree and authorize Fitscope to bill your account starting at the expiration of your paused account status period.

H. Authorization for Automatic Recurring Charges. When you sign up for our Service and provide a payment method to Fitscope or a third party Application, you are granting your express consent and are expressly authorizing us (and our designated payment processor) to automatically charge you each month for the Service. If you provide a payment method and our charge results in an overdraft, chargeback or other fee from your bank, you alone are responsible for that fee. EVEN IF YOU DO NOT USE THE SUBSCRIPTION OR ACCESS THE FITSCOPE APPLICATION, YOU WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH SECTION 9 BELOW OR IT IS OTHERWISE TERMINATED.

Auto Billing; Subscription Fees; Free Trial; and Cancellation Changes. Fitscope may increase its fees for any subscription effective the first day of a billing renewal by giving you notice of the new fees at least thirty (30) days before you are billed. If you have and do not cancel your subscription, you will be deemed to have accepted the new fees.

 

9. Cancellation; Term and Termination; Account Deletion

HOW TO CANCEL
If you are accessing the Fitscope Service through an Application (including a mobile application), cancellation, uninstall and removal methods vary depending on your device or the marketplace through which you purchased or downloaded the Application. To uninstall and remove a Fitscope mobile application, please use the application manager provided with your device or consult your device manual for reference. Additionally, if you purchased access or downloaded Applications through a third party marketplace, cancellation may be governed by such third party’s cancellation and payment policies.

TERM: This Agreement begins on the date you first use the Fitscope Service and continues as long as you have an account with us.

TERMINATION FOR BREACH: Fitscope may suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if Fitscope determines that you have violated any provision of this Agreement or that your conduct or content would tend to damage Fitscope’s reputation or goodwill. If Fitscope deletes your account for the foregoing reasons, you may not re-register for the Fitscope Service. Fitscope may block your email address and Internet protocol address to prevent further registration. Fitscope is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.

After your membership or subscription is terminated for any reason, all terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.

EFFECT OF TERMINATION/ACCOUNT DELETION: Upon termination, all licenses granted by Fitscope will terminate. Sections 4-5, 9, and 12-18 shall survive termination. In the event of account deletion for any reason, content that you submitted may no longer be available. Fitscope shall not be responsible for the loss of such content.

 

10. Intentionally Omitted.

 

11. Code of Conduct and Prohibited Activities

In using the Fitscope Service, you must behave in a civil and respectful manner at all times. Further, you will not and it is strictly prohibited to:
o Act in a deceptive manner by, among other things, impersonating any person;
o Harass or stalk any other person;
o Harm or exploit minors;
o Distribute “spam”;
o Promote information that is false or misleading, or promote illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
o “frame” or “mirror” any part of the Service or the Site;
o use meta tags or code or other devices containing any reference to Fitscope, the Site or the Service (or any trademark, trade name, service mark, logo or slogan of Fitscope) to direct any person to any other website for any purpose;
o modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or the Site or any software used on or for the Service or the Site, or cause others to do so;
o post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Site or the Service other than solely in connection with your use of the Service in accordance with this Agreement.
o Collect information about others;
o Advertise or solicit others to purchase any product or service within the Fitscope Site;
o Promote fraudulent schemes, multi level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures;
o Publicize or promote commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
o Participate in any activity that in any way violates any law; or
o Access or use the Site and Service (including any Add-on Service or application available through a mobile or set-top device) from the European Economic Area.
Fitscope reserves the right, in its sole discretion, to investigate and take appropriate legal action against anyone who violates this Agreement, including removing the offending communication from the Site or Service and terminating or suspending the membership of such violators.

Your use of the Site and Service must comply with all applicable laws and regulations. You agree that Fitscope may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Site in the future; or (v) protect the rights, property or personal safety of the Company or any other person.

 

12. Indemnification

You agree to indemnify, defend, and hold harmless Fitscope and its affiliates, directors, officers, employees, and agents, from and against any liability, claims, damages, losses and costs (including reasonable attorney’s fees) that: (i) arise from your activities on the Fitscope Service; (ii) assert a violation by you of any term of this Agreement; or (iii) assert that any content you submitted to Fitscope violates any law or infringes any personal right or third party right, including any intellectual property or privacy right. Fitscope reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fitscope in connection therewith.

 

13. License to Use the Fitscope Service

LICENSE: Fitscope grants you a limited, non-exclusive license to access and use the Fitscope Service for your own personal, non-commercial purposes. This includes the right to view content available on the Fitscope Service. This license is personal to you and may not be assigned or sublicensed to anyone else.

RESTRICTIONS: Except as expressly permitted by Fitscope in writing, you will not reproduce, redistribute, publicly display, sell, create derivative works from, decompile, reverse engineer, or disassemble the Fitscope Service. Nor will you take any measures to interfere with or damage the Fitscope Service. All rights not expressly granted by Fitscope are reserved.

MOBILE DEVICES, APPLICATIONS AND SET-TOP BOXES/EXTERNAL DEVICES: These Terms of Service, and all of the provisions herein, also govern the use of our mobile, desktop and set-top devices and related applications (for example, iOS devices, Android devices, Roku, Apple TV and other such devices and their corresponding apps).

Your use of the Fitscope Service through any applications or device constitutes your agreement to be bound by these Terms.

Any Fitscope application, regardless of the manner and means in which it is downloaded (for example the Apple AppStore, Google Play Store, your console’s app store, etc.) is licensed, not sold, to You for use only under these Terms. We, the licensor, Fitscope LLC (Application Provider) reserve all rights not expressly granted to You.

Accordingly, if you download the Fitscope Application, you will be: * installing a software program on your product in the form of an application; * entering into this contract with Fitscope LLC governing your use of the application.

 

14. Third Party Links and Content

Certain links on the Fitscope Sites and/or the Fitscope Service may let you leave the particular Fitscope Site or Fitscope Service you are accessing in order to access a linked site (the “Linked Sites”). When you are linking to a third party site, it is important to know that Fitscope does not control these sites, nor has Fitscope reviewed or approved the content which appears on the linked sites. Fitscope is not responsible for the legality, accuracy or nature of any content, advertising, products or other materials on or available from any linked sites, or the conduct of such linked sites. You acknowledge and agree that Fitscope shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any of the links, content, goods or services available on or through the linked sites.

Dealings with Third Parties.

More specifically, your participation, correspondence or business dealings with any third party found on or through the Fitscope Sites and Service (i.e., a linked site), regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Fitscope shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.

 

15. Intellectual Property

You acknowledge that the Fitscope Site and Services contain software, graphics, photos, videos, know-how, product ideas, comments and other material (collectively, “Content”) that is protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Fitscope-generated content and content developed for Fitscope by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Fitscope owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the Fitscope Site. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to access and use the Services, you may download one copy of the application (but never the Content) to any single computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with this Agreement. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website or networked computer environment is strictly prohibited.

The Fitscope name, logos and affiliated applications and technologies are the exclusive property of Fitscope LLC All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

Fitscope owns and retains all proprietary rights in the Site and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Site or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.

 

16. Copyright / DMCA Policy

Fitscope respects the intellectual property of others, and we ask our users to do the same. Each user is responsible for ensuring that the materials they upload to the Fitscope Site do not infringe any third party copyright.

Fitscope will promptly remove materials from the Fitscope Site in accordance with the Digital Millennium Copyright Act (“DMCA”) if properly notified that the materials infringe a third party’s copyright. In addition, Fitscope may, in appropriate circumstances, terminate the accounts of repeat copyright infringers.

Filing a DMCA Notice to Remove Copyrighted Content-for Copyright Holders If you believe that your work has been copied in a way that constitutes copyright infringement, please provide us with a written notice containing the following information: 1. Your name, address, telephone number, and email address (if any). 2. A description of the copyrighted work that you claim has been infringed. 3. A description of where on the Fitscope Site the material that you claim is infringing may be found, sufficient for Fitscope to locate the material (e.g., the URL). 4. A statement that you have a good faith belief that the use of the copyrighted work is not authorized by the copyright owner, its agent, or the law. 5. A statement by you UNDER PENALTY OF PERJURY that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. 6. Your electronic or physical signature.
You may submit this information via: 1. Email: contact@fitscope.com. 2. Offline: Fitscope’s Copyright Agent (see contact information below)

Filing a DMCA Counter-notification to Restore Removed Content for Fitscope Users If you believe that your material has been removed by mistake or misidentification, please provide Fitscope with a written counter-notification containing the following information: 1. Your name, address, and telephone number. 2. A description of the material that was removed and the location on the Fitscope Site (e.g., the URL) where it previously appeared. 3. A statement UNDER PENALTY OF PERJURY that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification. 4. A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, any judicial district in which Fitscope may be found (which includes the United States District Court for the Southern District of California), and that you will accept service of process from the person who filed the original DMCA notice or an agent of that person. 5. Your electronic or physical signature.
You may submit this information via: 1. Email: contact@fitscope.com 2. Offline: Fitscope’s Copyright Agent (see contact information below)
Please note that we will send any complete counter-notifications we receive to the person who submitted the original DMCA notice. That person may elect to file a lawsuit against you for copyright infringement. If we do not receive notice that a lawsuit has been filed within ten (10) business days after we provide notice of your counter-notification, we will restore the removed materials. Until that time, your materials will remain removed.
Warning In filing a DMCA notice or counter-notification, please make sure that you have complied with all of the above requirements. If we request additional information necessary to make your DMCA notice or counter-notification complete, please provide that information promptly. If you fail to comply with all of these requirements, your DMCA notice or counter-notification may not be processed further.
In addition, please make sure that all of the information you provide is accurate. UNDER SECTION 512(f) OF THE COPYRIGHT ACT, 17 U.S.C. § 512(f), ANY PERSON WHO KNOWINGLY MATERIALLY MISREPRESENTS THAT MATERIAL OR ACTIVITY IS INFRINGING OR WAS REMOVED OR DISABLED BY MISTAKE OR MISIDENTIFICATION MAY BE SUBJECT TO LIABILITY.
Fitscope may disclose any communications concerning DMCA notices or other intellectual property complaints with third parties, including the users who have posted the allegedly infringing material.
If you have questions about the legal requirements of a DMCA notice, please contact an attorney or see Section 512(c)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(c)(3), for more information. If you have questions about the legal requirements of a DMCA counter-notification, please contact an attorney or see Section 512(g)(3) of the U.S. Copyright Act, 17 U.S.C. § 512(g)(3), for more information.
Fitscope’s Copyright Agent You may send a DMCA notice, a DMCA counter-notification, or any inquiries concerning intellectual property to Fitscope’s Copyright Agent:
Fitscope LLC, 7848 W Sahara Ave, Las Vegas NV 89191 Attn: Legal Dept. – Copyright Agent contact@fitscope.com

 

17. General Provisions

ARBITRATION AND GOVERNING LAW: The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Service, or the Site shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against Fitscope in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against Fitscope or its affiliates any class action, class arbitration, or other representative action or proceeding.

By using the Site or the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and Fitscope or its affiliates (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against Fitscope (except for small-claims court actions) may be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury.

This Agreement, and any dispute between you and Fitscope, shall be governed by the laws of the state of California without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

INTERPRETATION; SEVERABILITY; WAIVER; REMEDIES: Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. No failure or delay by Fitscope in exercising any right hereunder will waive any further exercise of that right. Fitscope’s rights and remedies hereunder are cumulative and not exclusive.

SUCCESSORS; ASSIGNMENT; NO THIRD PARTY BENEFICIARIES: This Agreement is binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign this Agreement without Fitscope’s prior written consent. No third party shall have any rights hereunder.

NOTICES: You consent to receive all communications including notices, agreements, disclosures, or other information from Fitscope electronically. Fitscope may provide all such communications by email or by posting them on the Fitscope Service. For support-related inquiries, you may send an email to contact@fitscope.com or the following address:
Fitscope LLC 7848 W Sahara Ave, Las Vegas, NV 89191 Attention: Legal Department
Nothing herein shall limit Fitscope’s right to object to subpoenas, claims, or other demands.

MODIFICATION: This Agreement may not be modified except by a revised Terms of Service posted by Fitscope on the Fitscope Site or a written amendment signed by an authorized representative of Fitscope. A revised Terms of Service will be effective as of the date it is posted on the Fitscope Site.

ENTIRE AGREEMENT: This Agreement incorporates the following documents by reference:
Privacy Policy
This Agreement constitutes the entire understanding between Fitscope and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.