Terms of Service
Terms of service – The legal agreements between Health and Human Movement Inc., and you (HHM Athlete), who wants to use our services.
Summary
You subscribe to our services for a specific term (e.g. monthly), and your subscription gets renewed automatically at the end of each term.
If you wish to cancel your account, please notify us at least 10 days before the end of your term (via an email to dr.cain@hhmovement.com or through the applications message system).
If you use our services, we can use your business logo, photo, and other information on our websites and marketing variables for promotional purposes.
Please review the Trainerize and Evolution Nutrition Terms of Service (Use), below. You must agree to abide by the terms in order to use the offered services. Trainerize is the company we use for our personal training, corporate fitness and wellness, and nutrition application services, while Evolution Nutrition is another company we use for nutrition services.
We use other third parties websites (companies as well) on our website, including social media outlets, Amazon, and other fitness and nutrition organizations. You agree each platform may utilize your information, usually to learn more about site traffic, activity, and to make your overall experience better. Please read our Privacy Policy for more information.
You will consult with your physician (medical provider) or physical therapist for guidance on medically related inquiries/limitations and/or approval to start a HHM exercise and nutrition program. HHM athletes must be cleared for high-intensity type exercise (e.g. plyometrics, resistance training, HIIT - high intensity interval training, and similar types of exercise), prior to the beginning of any online HHM program. You must agree to complete all waivers, assessments, photo release, and consultations forms, prior to starting any of our programs.
Use of the site is limited to individuals 18 years of age or older. Your use of the site affirms that you are at least 18 years of age. By accepting this agreement, you are affirming that you are 18 years of age or older and have the legal ability to enter into the terms, conditions, representations, and warranties in the Terms of Service. HHM will not be held liable, so far as the law permits, in any way for use of this site by persons under the age of 18.
Please Review our FAQ page as well for more information, relating to refunds and other concerns.
If you have any questions/concerns, please email Dr.Cain@HHMovement.com
Online Training and Nutrition Programs - You must agree to abide by the terms in order to use the offered services.
Cleared by physician or medical provider, and complete waiver and other related forms, prior to the beginning of any HHM program.
Read and understand all terms of services (and instructions/directions within the programs), prior to beginning and using any of the HHM programs.
Disclose and discuss any vital information (e.g. health, training age, past injury, surgery or health issues, contradictions provided by your medical provider, etc.), and provide necessary documentation to your head trainer, prior to the beginning of any HHM Program. If needed, you and your trainer will discuss this variables and your program could be modified.
Please be honest with your head trainer of all variables that can positively or negatively impact your online training and nutrition experiences. Here are Health and Human Movement Inc. we can about your experiences and results. Therefore, the more information we can process and utilize, the better your experiences, results, and programs will be.
If you have any questions/concerns, please email Dr.Cain@HHMovement.com
Trainerize.com Terms of Service
TERMS OF SERVICE
Last Updated as of June 15, 2020
1. Definitions and Interpretation
Unless otherwise defined herein, or the context otherwise dictates, capitalized terms used in the Terms of Service shall have the indicated meanings set forth in Exhibit “A” attached hereto.
2. Acceptance
a. By directly or indirectly accessing or making use of the Services of TSR Gym Technik Ltd. (the “Vendor”), and/or by clicking the acceptance button, you: (i) signify your agreement to be bound by the terms and conditions set out in this terms of service (including its Exhibit) and the Vendor’s privacy policy found at http://www.trainerize.com/privacy.aspx incorporated herein by reference (collectively, the “Terms of Service”); and (ii) represent and warrant that you are older than 18 years of age and that you have, and at all times shall have, the necessary power, capacity and authority to enter into, abide by, comply with and perform your obligations under the Terms of Service.
b. The Vendor reserves the right to, at its sole discretion, amend the Terms of Service at any time and without notice, the most current version of which shall always be available at http://trainerize.com/legal.aspx. You acknowledge and agree that the continued use of the Services by you or your Agents, following any amendment of the Terms of Service, shall signify your assent to, and acceptance of, such amended terms and conditions.
c. Subject to the Terms of Service, if you do not agree to the Terms of Service, or any subsequently amended term or condition thereof, you and your Agents cannot use the Services, and any Terms of Service previously entered into must forthwith be terminated by you pursuant to Section 15(a).
3. Special Consents and Acknowledgements
a. YOU ACKNOWLEDGE AND AGREE THAT:
i. IF YOU HAVE AN EMERGENCY, HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING THE SERVICES AND THE CONTENT AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR GO TO THE NEAREST HOSPITAL;
ii. THE INFORMATION CONTAINED WITHIN THE SERVICES AND THE CONTENT IS INTENDED TO BE GENERAL IN NATURE, NOTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT CONSTITUTES MEDICAL ADVICE AND YOU SHOULD NOT RELY ON ANYTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT AS A SUBSTITUTE FOR APPROPRIATE AND TIMELY CONTACT WITH YOUR PHYSICIAN;
iii. THE VENDOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO: (1) CONTENT FORMING PART OF OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION WORK-OUT PLANS, EXERCISE VIDEOS, AND OTHER SIMILAR CONTENT, WHETHER OR NOT PROVIDED BY OR ON BEHALF OF THE VENDOR AND (2) TRAINERS, INCLUDING WITHOUT LIMITATION THE QUALITY OR CERTIFICATION LEVELS THEREOF, AND THAT INTERACTIONS WITH TRAINERS THROUGH THE SERVICES OR OTHERWISE IS AT YOUR SOLE DISCRETION AND RISK;
iv. YOU SHOULD NEVER CHANGE OR STOP ANY COURSE OF MEDICAL TREATMENT WITHOUT FIRST CONSULTING YOUR PHYSICIAN; AND
v. PARTICIPATING IN AN EXERCISE PROGRAM OR DIET CAN CAUSE INJURY, AND YOU ELECT TO DO SO ENTIRELY AT YOUR OWN RISK.
4. License to Use Services
a. Subject to your compliance with the terms and conditions of the Terms of Service, the Vendor hereby grants to you a revocable, personal, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Services procured and/or purchased by you, or for you, exclusively in the manner set out in the Terms of Service.
b. All right, title, interest, ownership rights and intellectual property rights in and to the Services and the trademarks of the Vendor, are and shall remain the property of the Vendor and its licensors, as applicable.
c. The Vendor reserves all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the Terms of Service grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or the Vendor’s name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the Terms of Service.
d. Notwithstanding any other term of the Terms of Service, including without limitation Section 4(a), no TSR Customer, Trainer or Trainee shall be allowed or permitted to access or make use of the Services, until such TSR Customer, Trainer or Trainee has entered into the most current version of the Terms of Service.
5. Information and Access IDs
a. In order to use the Services, you must provide certain information through the Services, including without limitation your full legal name, physical address, email address and phone number. You may furthermore be asked to disclose your credit card details, payment processor account information and certain other information with respect to the payment of Fees and Charges (in each case as defined below) and other financial transactions facilitated by the Services. You represent and warrant that all information you provide to the Vendor through the Services, and otherwise, shall be true, accurate, current and complete, and you shall update such information as necessary to maintain its truth and accuracy. You furthermore represent and warrant that at no point shall you impersonate any person or entity or misrepresent any affiliation of a person or entity.
b. You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a TSR Customer, ensure that only the Trainers and Trainees who have been authorised to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a TSR Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor.You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a TSR Customer, ensure that only the Trainers and Trainees who have been authorised to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a TSR Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor.
6. Payment Processing
Payment processing services for the Services are provided by Stripe Payments Canada Ltd., Recurly, Inc., Beanstream Internet Commerce, Inc and their respective affiliates or other payment processing services providers as the Vendor may choose from time to time (collectively referred to herein as the "Payment Processing Services Provider"). You hereby authorize the Vendor to share with the Payment Processing Services Provider the financial information, banking details, transaction information and account information provided by you and/or related to your use of the Services as is reasonably required for the provision of the payment processing features contemplated by the Services (including payment of Fees and Charges (each as defined below)). You also agree that the Vendor is not responsible or liable for the use or misuse of such financial information, banking details, transaction information and account information by the Payment Processing Services Provider or any third party.
If a Payment Processing Services Provider is utilized to make or receive a payment in connection with your use of the Services, you should be aware that the terms and policies, including privacy and data gathering practices, of the Payment Processing Services Provider apply to your dealings with the Payment Processing Services Provider. Your account and any activities related to providing your personal information will be governed by the Payment Processing Services Provider’s terms and conditions, and the information provided in relation thereto will be governed by the Payment Processing Services Provider’s privacy policy.
If you utilize the payment processing features of the Services, you shall not (i) submit what you believe or know to be a fraudulent charge, refund, dispute or other transaction (ii) use such payment processing features in a manner that is an abuse of or in violation of this Agreement, any terms or policies of the Payment Processing Services Provider, or applicable laws.
7. Payment of Fees to Vendor
a. If you are a TSR Customer, then you acknowledge and agree that:
i. UNTIL THE TERMS OF SERVICE IS TERMINATED BY YOU OR THE VENDOR IN ACCORDANCE WITH SECTION 15, YOU SHALL PAY TO THE VENDOR MONTHLY OR ANNUAL FEES IN ADVANCE BASED ON THE USAGE PLAN SUBSCRIBED TO BY YOU DURING THE APPLICABLE PERIOD AND ALL IN-APPLICATION PURCHASES MADE BY YOU AND YOUR AGENTS DURING SUCH PERIOD, CALCULATED IN ACCORDANCE WITH THE FEE SCHEDULE (collectively, the “Fees”);
ii. THE FEES SHALL BE PAID BY CREDIT CARD OR IN ANOTHER FORM OF IMMEDIATELY AVAILABLE FUNDS ACCEPTABLE TO THE VENDOR, ACTING REASONABLY, AND IF YOU PROVIDE YOUR CREDIT CARD DETAILS THROUGH THE SERVICES OR OTHERWISE, YOU AGREE TO THE VENDOR AND ITS PAYMENT PROCESSING PROVIDER CHARGING THE FEES TO YOUR CREDIT CARD WITHOUT REQUIRING ANY FURTHER NOTICE TO, OR CONSENT FROM, YOU, AND YOU FURTHERMORE REPRESENT AND WARRANT THAT SUCH FEE PAYMENTS SHALL BE MADE WHEN DUE;
iii. if you fail to pay Fees when due, the Vendor shall be entitled to take any action set out in Section 15(b), including without limitation changing your Usage Plan to a Trial Usage Plan, and all overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse the Vendor for all expenses (including reasonable attorneys’ fees) incurred by the Vendor to collect any amount that is not paid when due;
iv. you shall be responsible for any and all currency conversion charges as well as sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial or local governmental entity on any Fees other than any taxes imposed on, or with respect to, the Vendor’s income;
v. notwithstanding termination of the Terms of Service, you shall not be entitled to a refund from the Vendor for any Fees or any pro rata portion of any Fees paid or payable to the Vendor pursuant to the Terms of Service: (A) in respect of any monthly billing cycle that had already commenced at the date of such termination, if you are subscribed to a monthly Usage Plan; and (B) in respect of any annual billing cycle that had already commenced at the date of such termination, if you are subscribed to an annual Usage Plan (by way of example, if you subscribe for an annual Usage Plan on July 5, 2015 and terminate the Terms of Service on July 10, 2016, then you shall be liable to pay the annual Fee for July 5, 2015 to July 4, 2016 and the annual Fee for July 5, 2016 to July 4, 2017, and you shall not be entitled to a refund from the Vendor in relation to any such Fees);
vi. NOTWITHSTANDING ANY OTHER TERM OF THE TERMS OF SERVICE, THE VENDOR SHALL BE ENTITLED TO AMEND THE FEE SCHEDULE FROM TIME TO TIME, BY GIVING YOU THIRTY (30) DAYS WRITTEN NOTICE OF SUCH AMENDMENT, WHICH NOTICE SHALL AMEND THE FEE SCHEDULE ACCORDINGLY, AND SHALL BE BINDING ON YOU, AS OF YOUR NEXT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE (the “Amended Fee Schedule”).
vii. IF YOU AGREE TO THE TERMS OF SERVICE AS AMENDED FROM TIME TO TIME BUT DO NOT AGREE TO A SPECIFIC AMENDED FEE SCHEDULE, YOU AND ALL TRAINERS AND TRAINEES WHO HAVE BEEN AUTHORISED TO ACCESS AND USE THE SERVICES PROCURED BY YOU CANNOT USE THE SERVICES AFTER THE END OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE, AND THE TERMS OF SERVICE MUST BE TERMINATED BY YOU PURSUANT TO SECTION 15(a) ON OR BEFORE THE LAST DAY OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE; and
viii. you acknowledge and agree that the Vendor may, from time to time in its sole discretion, offer Trial Usage Plans, and that: (i) you shall comply with any and all additional terms, restrictions and/or limitations imposed by the Vendor on any such Trial Usage Plan; and (ii) the Vendor may at any time and for any reason, without liability to you or any other person alter, amend, modify or cancel any aspect of such Trial Usage Plans, including without limitation, the term, access rights, Fees, nature, scope, features, functionality, operation and Content associated therewith; and
8. Products and Services, Trainerize Pay and Payment Facilitation
a. If you are a Trainee:
i. You understand that use of the Services may result in charges to you for the services or goods you receive from a TSR Customer and/or Trainer ("Charges "). After you have received services or goods obtained through your use of the Services, if you utilize the Services in such manner, the Vendor will, through its Payment Processing Service Provider, facilitate your payment of the applicable Charges to the applicable TSR Customer and/or Trainer (the "Service Provider"). Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Service Provider. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
ii. Charges paid by you are final and non-refundable, unless otherwise determined by the Vendor or the Service Provider, as applicable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Services, any disruption to the Services, or any other reason whatsoever.
iii. The Services will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Access ID or account regardless of your awareness of such Charges or the amounts thereof. The Vendor may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
iv. You may only use the Services for legitimate transactions with Service Providers. You are responsible for your relationship with Service Providers. Vendor is not responsible for the products or services you purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you receive, and for delivery, support, refunds, returns, and for any other ancillary services you receive from Service Providers. You will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services
b. If you are a Service Provider:
i. If you utilize the Services in such manner, you will receive payment through the Payment Processing Services Provider for any Charges actually paid by a Trainee related to services or goods provided by you through the Services, less any commissions, transaction fees or other deductions charged by the Payment Processing Services Provider and/or the Vendor. You hereby authorize the Vendor to process all payments due to you through its Payment Processing Services Provider.
ii. You hereby acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that the Vendor is required to withhold by law. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services, or for any failure by a Trainee to make payment to you in connection with the Services.
iii. You hereby acknowledge and agree that you shall be responsible for all currency conversion charges and responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on any Charges. You hereby agree to defend, indemnify and hold harmless the Vendor and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts.
iv. You may only use the Services for legitimate transactions with Trainees. You are responsible for your relationship with Trainees. Vendor is not responsible for the products or services you publicize or sell, or that your Trainees purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to Trainees. It is very important to the Vendor that your Trainees understand the purpose, amount, and conditions of charges you submit through the Services. With that in mind, when using the Services you agree to: (A) accurately communicate, and not misrepresent, the nature of any product or service, and the amount of the charge or transaction in the appropriate currency (B) provide Trainees a meaningful way to contact you in the event that the product or service is not provided as described; and (C) not use Services to sell products or services in a manner that is unfair or deceptive, exposes Trainees to unreasonable risks, or does not disclose material terms of a purchase in advance. You also agree to maintain a fair return, refund, cancellation, or adjustment policy, and clearly explain the process by which Trainees can receive a refund.
v. You are responsible for knowing whether a transaction initiated by a Trainee is erroneous (such as a Trainee purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases). If you are unsure if a transaction is erroneous or suspicious, you agree to research the transaction and, if necessary, contact the Trainee before fulfilling or completing the transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services. You are solely responsible for providing support to Trainees regarding transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
vi. You hereby represent and warrant that: (A) any information you provide us about your business, products, or services is accurate and complete; (B) any Charges represent a transaction for permitted products or services, and any related information accurately describes the transaction; (C) you will fulfil all of your obligations to Trainees and will resolve all disputes with them; (D) you will comply with all laws applicable to your business and use of the Services; (E) you will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services.
9. General Use of the Services - Permissions and Restrictions
a. You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.
b. You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.
c. You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.
d. You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.
e. You shall use the Services in accordance with the Terms of Service and any and all applicable laws and regulations. The Vendor reserves the right to investigate and take appropriate action against anyone who, in the Vendor’s sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section 15(b).
f.
10. Content
a. Unless otherwise expressly set out in the Terms of Service, all right, title, interest, ownership rights and intellectual property rights in and to Your Content, and your trademarks, are and shall remain your property, your Agents’ property and/or the property of its or their respective licensors, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Sections 15 and 21(a)(iv).
b. You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) your Agents; (ii) other users of the Services; (iii) the Vendor and the Vendor’s Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. The Vendor shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Services is not shared between TSR Customers (unless you select otherwise), but you acknowledge and agree that the Vendor cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.
c. You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize the Vendor to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and the Terms of Service without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant the Vendor an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, exclusively for the purpose of providing the Services.
d. The Vendor reserves the right to, with or without notice, remove Your Content for any reason whatsoever, including without limitation any of Your Content that: (i) allegedly infringes on another’s intellectual property rights; (ii) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) is considered adult or pornographic; (iv) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (v) solicits personal information from anyone under 18; (vi) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; or (viii) interferes or attempts to interfere with the proper working of the Services, disrupts or attempts to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, prevents or attempts to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.
e. You acknowledge and agree that the Vendor typically does not, and has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at the Vendor’s sole discretion do so at any time. The Vendor does not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that the Vendor does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and the Vendor expressly disclaims any and all liability in connection therewith. You acknowledge and agree that the Vendor assumes no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.
f. The Vendor contracts a third party to store Content, including Your Content, and, while these Terms of Service are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by the Vendor in its sole discretion. However, you should make your own interim back-ups of all of Your Content, including without limitation any and all Content you upload or otherwise make available through the document management features of the Services. Following any cancellation of your account, the Vendor is under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these Terms of Service, the Vendor shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.
g. If you are a Service Provider and you receive Content or other information through the Services that constitutes the Personal Information of a Trainee, including without limitation any fitness or health tracking data or nutritional data of a Trainee, you agree to only use and disclose such information for the purpose of providing fitness training and related services to such Trainee, and to use reasonable means appropriate to the sensitivity of such information to protect it from unauthorized access, collection, use and disclosure.
11. Copyright and Trademark Compliance and Complaints
a. If you are an intellectual property owner or an agent thereof and believe that either (1) any Content on the Services or (2) any material or activity contained on an online location to which the Services have referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):
1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;
3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);
4. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;
5. a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notification pursuant to the DMCA should be submitted to:
Copyright Manager TSR Gym Technik Ltd.
1250 Homer Street Suite 305 Vancouver, BC, V6B 1C6 Canada
Phone: 1-800-998-6439
Email: copyright@trainerize.com
b. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. Emails or notices sent to Vendor without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.
12. Trademarks and Celebrity Material
a. Vendor responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.
b. Please be aware that celebrities, and sometimes others, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Services and you do not have the celebrity's permission.
c. If you are a trademark owner or a celebrity and you believe your rights have been infringed on the Services, please submit a notification of infringement to our agent listed in the Section entitled "Copyright and Trademark Compliance and Complaints" above.
d. To submit a notification, you must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.
e. When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office or other national trademark office. Please also provide the location on the Services where you believe the infringement is occurring.
13. Third Party Services
The Services may provide you with access to services (including video content related services) provided by third parties (each a "Third Party Service"). Your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from the Vendor and the Services, and the Vendor does not endorse, and has no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not make any claim against Vendor arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services. Without limiting the foregoing, the Services utilize certain YouTube API Services, and by using the Services you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.
14. Feedback
a. You acknowledge and agree that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data, information and other output or feedback which you and your Agents provide to the Vendor related to the Services, the Vendor or the Vendor’s business, including without limitation in any user forums made available by the Vendor, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Services by you and your Agents (“Feedback”), shall become the Vendor’s property without any compensation or other consideration payable to you or your Agents, and you do so of your own free will and volition. The Vendor may or may not, in its sole discretion, use the Feedback, commercialize the Feedback and/or incorporate the Feedback in whatever form or derivative into the Services, its other products and services, or any future versions or derivatives of the foregoing. You shall and do hereby assign, and shall cause the assignment of, all rights on a worldwide basis in perpetuity to the Vendor in any and all Feedback and, as applicable, shall and do hereby waive, and shall cause the waiver of, all moral rights therein and thereto.
15. Termination, Modification and Suspension
a. SUBJECT TO SECTION 7(a)(v), YOU MAY TERMINATE THE TERMS OF SERVICE AT ANY TIME AND FOR ANY REASON BY INITIATING AND COMPLETING THE ACCOUNT CANCELLATION PROCESS SET OUT AT http://help.trainerize.com/entries/21757502-How-do-I-downgrade-or-delete-my-account- AND DISCONTINUING YOUR USE OF THE SERVICES.
b. THE VENDOR MAY AT ITS SOLE DISCRETION AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE: (I) BAN ANY COMPUTER OR DEVICE FROM ACCESSING THE SERVICES; (II) PREVENT ANY PERSON FROM ACCESSING THE SERVICES; (III) TERMINATE, MODIFY, SUSPEND OR DISCONTINUE ANY USAGE PLAN, ACCESS ID, TERMS OF SERVICE OR SERVICES; (IV) REMOVE ANY OF YOUR CONTENT; AND/OR (V) CHANGE YOUR USAGE PLAN TO A TRIAL USAGE PLAN.
16. Warranty Disclaimer
a. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), AND ANY AND ALL INTERACTIONS BETWEEN YOU AND SERVICE PROVIDERS THROUGH THE SERVICES OR OTHERWISE, SHALL IN ALL CASES BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM THE VENDOR OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
b. THE VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES. THE VENDOR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. THE VENDOR SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.
17. Limitation of Liability
a. IN NO EVENT SHALL THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS DIRECTLY OR INDIRECTLY, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT; (III) UNAUTHORIZED ACCESS TO OR USE OF THE VENDOR’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) TERMINATION OF ACCESS TO THE SERVICES OR REMOVAL OF ANY CONTENT BY THE VENDOR; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD-PARTY; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, WHETHER THE FOREGOING IS BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. THE TOTAL AGGREGATE LIABILITY OF THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE AND/OR USE OF, OR ACCESS TO, THE SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU, NOT TO EXCEED THE LESSER OF CAD $100.00 AND THE AMOUNT ACTUALLY RECEIVED BY THE VENDOR FROM YOU PURSUANT TO THE TERMS OF SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY ACTION COMMENCED AGAINST THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE, SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN.
c. THE VENDOR DOES NOT CONTROL CONTENT AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE VENDOR SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
d. YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THE TERMS OF SERVICE YOU HEREBY GIVE UP YOUR RIGHT TO (I) HAVE A TRIAL BY JURY; AND (II) PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY DISPUTE RELATED TO THE TERMS OF SERVICE.
e. ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
18. Indemnity by You
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM: (I) YOUR OR YOUR AGENTS’ USE OF OR ACCESS TO THE SERVICES; (II) ANY THIRD PARTY USE OF, OR ACCESS TO, YOUR ACCESS ID; (III) YOUR OR YOUR AGENTS’ VIOLATION OF ANY TERM OF THE TERMS OF SERVICE; (IV) YOUR OR YOUR AGENTS’ VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION YOUR CONTENT INFRINGING ANY INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT), OR PRIVACY RIGHT; (V) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD-PARTY. (VI) ANY DISPUTE OR CLAIM ARISING BETWEEN YOU AND YOUR CUSTOMERS (INCLUDING TRAINEES) OR SERVICE PROVIDERS (INCLUDING TSR CUSTOMERS AND TRAINERS) IN ANY WAY RELATED TO OR CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO PRODUCTS OR SERVICES PROCURED OR PURCHASED THROUGH THE SERVICES; OR (VII) ANY FRAUDULENT TRANSACTIONS OR CHARGES SUBMITTED OR PERMITTED BY YOU OR ON YOUR BEHALF OR IN WHICH YOU PARTICIPATE IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY PAYMENT PROCESSING FEATURES THEREOF. THIS DEFENCE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMS OF SERVICE AND YOUR AND YOUR AGENTS’ USE OF THE SERVICES.
16. Assignment
The Terms of Service, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by the Vendor without restriction.
17. Data Usage and Charges
The Services may use information and data transmission networks operated by third-parties to send data, information and Content from a computer or device to the Vendor’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.
18. Updates and Availability of Services
a. You acknowledge and agree that:
i. the Vendor may from time to time, at its sole discretion, make Updates available to you, but is under no obligation to do so;
ii. Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at the sole discretion of the Vendor;
iii. Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the Terms of Service; and
iv. there may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.
19. General
a. Nothing in the Terms of Service shall be construed to constitute the Vendor and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of the Vendor or waive any right, interest or claim that the Vendor may have, other than as expressly set out herein, or with the prior written consent of the Vendor.
b. If there is any dispute between you and the Vendor about or involving the Services or the Terms of Service, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of the Terms of Service or your access to or use of the Services, howsoever arising, provided always that the Vendor may seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.
c. The Terms of Service constitutes the whole legal agreement between you and the Vendor and governs your use of the Services (but excluding any services which the Vendor may provide to you under a separate written agreement), and completely replaces and supersedes any prior and contemporaneous agreements between you and the Vendor in relation to the Services. Notwithstanding the foregoing, you and the Vendor shall be entitled to enter into an additional superseding agreement which by its terms may expressly alter, amend or terminate the Terms of Service.
d. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and the Vendor’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
e. Sections 4(b), 4(c), 6, 7(a)(i), 7(a)(ii), 7(a)(iii), 7(a)(iv), 7(a)(v), 8, 9(a), 9(b), 9(c), 9(d), 10 through 19, 22 and such other provisions of the Terms of Service which by implication from its nature is intended to survive the termination or expiration of the Terms of Service, shall survive termination or expiration of the Terms of Service.
20. Contact the Vendor
You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to the Vendor at help@trainerize.com.
EXHIBIT “A”
DEFINITIONS AND INTERPRETATION
“Access IDs” means the unique identification names and corresponding passwords assigned to a TSR Customer and the Trainers and Trainees who have been authorised to access and use the Services procured by such TSR Customer, and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.
“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors and/or other authorized representatives, and “Agent” shall be construed accordingly.
“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.
“Fee Schedule” means the Vendor’s fee schedule, as provided by the Vendor to certain users of the Services from time to time, setting out the cost of the respective Usage Plans, and/or the cost of the respective In-Application Purchases, as applicable.
“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by the Vendor, which is not otherwise included in the cost of the Usage Plan subscribed to by a TSR Customer.
“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.
“Services” means the services offered or made available by the Vendor, including without limitation the Trainerize software as a service platform, and any website, application or widget associated therewith, as modified by the Vendor by way of Updates from time to time.
“Trainee” means a person directly or indirectly accessing or making use of the Services procured by a TSR Customer as a trainee, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness training services from the TSR Customer and/or a Trainer, and “Trainees” shall be construed accordingly.
“Trainer” means a person directly or indirectly accessing or making use of the Services procured by a TSR Customer as a trainer, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training services to one or more Trainees, and “Trainers” shall be construed accordingly.
“Trial Usage Plans” means the free or discounted Usage Plans, and “Trial Usage Plan” shall be construed accordingly.
“TSR Customer” means a person who procures Services from the Vendor, including without limitation, by placing an order for a specific Usage Plan with the Vendor, thereby allowing access to, and use of, such Services by the TSR Customer and the related Trainers and Trainees, and “TSR Customers” shall be construed accordingly.
“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.
“Usage Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Usage Plans, on a no-charge basis, by the Vendor to TSR Customers, each such plan allowing the TSR Customer and a certain set number of Trainers and Trainees to access and use the Services or certain features thereof procured by the TSR Customer, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.
“you”, “your” and/or “yourself” means either the TSR Customer, Trainer or Trainee entering into the Terms of Service, as applicable.
“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products (including without limitation any media (including photos, videos and accompanying music), fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services).
EvolutionNutrition.com Terms of Use
PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS SITE.
By using www.evolutionnutrition.com (the “Site,”), you signify your assent to these Terms of Use. If you do not agree to all of these Terms of Use, do not use the Site.
Evolution Nutrition, Inc. (sometimes referred to as “Evolution Nutrition,” “we,” or “us”) may revise and update these Terms of Use and the Evolution Nutrition Privacy Policy at any time. Your continued usage of the Site and/or software (the “Evolution Nutrition Software,” and, together with Site, the “Evolution Nutrition Services”) will mean you accept those changes.
The Services Do Not Provide Medical Advice
The contents of the Evolution Nutrition Services, such as text, graphics, images, information, charts, obtained from Evolution Nutrition’s licensors, including information, advice and coaching received either in written or oral format, and other material contained in the Evolution Nutrition Services (“Content”) are for informational purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. Never disregard professional medical advice or delay in seeking it because of something you have read on or from the Evolution Nutrition Services.
If you think you may have a medical emergency, call your doctor or 911 immediately. Evolution Nutrition does not recommend or endorse any specific tests, physicians, products, procedures, opinions, or other information that may be mentioned in the Evolution Nutrition Services. Reliance on any information provided by Evolution Nutrition (including its licensors), Evolution Nutrition employees, Evolution Nutrition contractors, Evolution Nutrition agents, Evolution Nutrition affiliates, others commenting on the Site at the invitation of Evolution Nutrition, or other users of the Site is solely at your own risk.
Compliance With Laws and Licensure
You will comply with all applicable laws in connection with your use of the Evolution Nutrition Services, including without limitation maintaining any necessary licenses or permits that may be required to render services to others in connection with the Evolution Nutrition Services.
Children’s Privacy
We are committed to protecting the privacy of children. You should be aware that the Evolution Nutrition Services are not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.
Use of Content
Evolution Nutrition authorizes you to use the Content solely for your personal, noncommercial use. You may print, download and otherwise make copies of Content provided that you include the following copyright notice: “Copyright ©2010, Evolution Nutrition, Inc. All rights reserved.” and other copyright and proprietary rights notices that are contained in the Content. Any special rules for the use of certain software and other items accessible on the Site or through the Evolution Nutrition Software may be included elsewhere within the Site and the Evolution Nutrition Software and are incorporated by reference into these Terms of Use.
The Content is protected by copyright under both United States and foreign laws. Title to the Content remains with Evolution Nutrition or its licensors. Any use of the Content not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. Content and features are subject to change or termination without notice in the editorial discretion of Evolution Nutrition. All rights not expressly granted herein are reserved to Evolution Nutrition and its licensors.
If you violate any of these Terms of Use, your permission to use the Content automatically terminates and you must immediately destroy any copies you have made of any portion of the Content.
Liability of Evolution Nutrition and Its Licensors
The use of the Evolution Nutrition Services and the Content is at your own risk.
When using the Site, information will be transmitted over a medium that may be beyond the control and jurisdiction of Evolution Nutrition and its licensors. Accordingly, Evolution Nutrition assumes no liability for or relating to the delay, failure, interruption, or corruption of any data or other information transmitted in connection with use of the Site or the Evolution Nutrition Software.
The Evolution Nutrition Services and the Content are provided on an “as is” basis. EVOLUTION NUTRITION AND ITS LICENSORS, TO THE FULLEST EXTENT PERMITTED BY LAW, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. Without limiting the foregoing, Evolution Nutrition and its licensors make no representations or warranties about the following:
1. The accuracy, reliability, completeness, currentness, or timeliness of the Content, including without limitation software, text, graphics, links, charts, information or communications provided on or through the use of the Site or Evolution Nutrition Software.
2. The satisfaction of any government regulations requiring disclosure of information on prescription drug products or the approval or compliance of Content, including without limitation any software tools contained on the Site.
In no event shall Evolution Nutrition, its licensors, or any third parties mentioned on the Site or in the Evolution Nutrition Software be liable for any damages (including, without limitation, special, indirect, incidental and consequential damages, personal injury/wrongful death, lost profits, or damages resulting from lost data or business interruption) resulting from the use of or inability to use the Evolution Nutrition Services or the Content, whether based on warranty, contract, tort, or any other legal theory, and whether or not Evolution Nutrition, its licensors, or any third parties mentioned on the Site or in the Evolution Nutrition Software are advised of the possibility of such damages. In the event that Evolution Nutrition, its licensors, or any third parties mentioned on the Site and in the Evolution Nutrition Software shall be liable for damages, they shall be liable only to the extent of actual damages incurred by you, not to exceed U.S. $100. Evolution Nutrition, its licensors, or any third parties mentioned on the Site or in the Evolution Nutrition Software are not liable for any personal injury, including death, caused by your use or misuse of the Site, Evolution Nutrition Software, Content, or “Public Areas” (as defined below). Any claims arising in connection with your use of the Site, the Evolution Nutrition Software, any Content, or the Public Areas must be brought within one year of the date of the event giving rise to such action occurred. Remedies under these Terms of Use are exclusive and are limited to those expressly provided for in these Terms of Use.
User Submissions
The personal information you submit to Evolution Nutrition is governed by the Evolution Nutrition Privacy Policy. To the extent there is an inconsistency between these Terms of Use and the Evolution Nutrition Privacy Policy, these Terms of Use shall govern.
You agree that you will not upload or transmit any communications or content of any type to the Public Areas (including blogs, message boards, forums, article or other postings, user reviews of products, including drug products, etc.) that infringe or violate any rights of any person. By submitting communications or content to the Public Areas, you agree that such submission is non-confidential for all purposes.
If you make any such submission you agree that you will not send or transmit to Evolution Nutrition by email, (including through the email addresses listed on the “Contact Us” page), or by mail, any communication or content that infringes or violates any rights of any person. If you submit any business information, idea, concept or invention to Evolution Nutrition by email, you agree such submission is non-confidential for all purposes.
If you make any submission to a Public Area or if you submit any business information, idea, concept or invention to Evolution Nutrition by email or by mail, you automatically grant or warrant that the owner of such content or intellectual property has expressly granted Evolution Nutrition a royalty-free, perpetual, irrevocable, worldwide, non-exclusive license to use (including without limitation to reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display) the communication or content in any media or medium, or any form, format or forum now known or hereafter developed. Evolution Nutrition may sublicense its rights through multiple tiers of sublicenses. If you wish to keep any business information, ideas, concepts or inventions private or proprietary, do not submit them to the Public Areas or to Evolution Nutrition by email or mail. We try to answer every correspondence in a timely manner but are not always able to do so.
User Submissions — Image, Video, Audio Files
You agree to only post or upload media (such as photos, videos or audio files) that you have taken yourself or that you have all rights to transmit and license and which do not infringe or violate trademark, copyright, privacy or any other rights of any other person. Please note that photos or videos of celebrities and cartoon or comic images are usually copyrighted by the owner.
To protect your privacy, you agree that you will not submit any media that contains personally identifiable information (including without limitation name, phone number, email address or website URL.) of you or of anyone else. Uploading media such as images or video of other people without their permission (or, if a minor, his or her parent’s or legal guardian’s permission) is strictly prohibited.
By uploading any media on the Site, you warrant that you have permission from all persons appearing in such media for you to upload such media (or, if a minor, his or her parent’s or legal guardian’s permission) and grant rights described herein. Never post a picture or video of or with someone else unless you have their explicit permission.
It is strictly prohibited to upload media of any kind that contain any expressions of hate, any abuse, any offensive images or conduct, any obscenity, any pornography, any sexually explicit material or any material that could give rise to any civil or criminal liability under applicable law or regulations or that otherwise may be in conflict with these Terms of Use and the Evolution Nutrition Privacy Policy.
You agree that you will not upload any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Site, Evolution Nutrition Services or Content.
By uploading any media, you (a) grant to Evolution Nutrition a royalty-free, perpetual, irrevocable, worldwide, non-exclusive license to use (including without limitation to reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display) the media and any material included in the media; and (b) certify that any person pictured in the submitted media (or, if a minor, his or her parent or legal guardian) authorizes Evolution Nutrition to use (including without limitation to reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform and display) the media and any material included in such media; and (c) agree to indemnify Evolution Nutrition and its licensors, affiliates, subsidiaries, employees, contractors, officers, and directors and hold them harmless from any and all claims and expenses, including attorneys’ fees, arising from the media and/or your failure to comply with these the terms of these Terms of Use.
Evolution Nutrition reserves the right to review all media prior to submission to the site and to remove any media for any reason, at any time, without prior notice, in its sole discretion.
Security
Evolution Nutrition takes security very seriously. Evolution Nutrition never sends your login credentials in the clear and ensures that whenever it does send that data across the Internet, it is always encrypted.
Passwords
Evolution Nutrition has several tools that allow you to record and store information. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your Evolution Nutrition user name, passwords or accounts. It is your sole responsibility to (1) control the dissemination and use of your user name and activation codes and passwords; (2) authorize, monitor, and control access to and use of your Evolution Nutrition account, user name and password; (3) promptly inform Evolution Nutrition of any need to deactivate a user name or password. You grant Evolution Nutrition and all other persons involved in the operation of the Evolution Nutrition Services the right to use (including without limitation to transmit, monitor, retrieve and store) your information in connection with the operation of the Evolution Nutrition Services. Evolution Nutrition cannot and does not assume any responsibility or liability for any information you submit, or your or third parties’ use or misuse of information transmitted or received using the Evolution Nutrition Services.
Evolution Nutrition Community and Public Areas
If you use the Site blogs, message boards, forums, article or other postings, user reviews or other user communities (the “Public Areas”), you are solely responsible for your own communications, the consequences of posting those communications, and your reliance on any communications found in the Public Areas. Evolution Nutrition and its licensors are not responsible for the consequences of any communications in the Public Areas.
The following actions shall constitute a material breach of these Terms of Use:
1. Using a Public Area for any purpose in violation of local, state, federal or international laws or regulations;
2. Posting material that infringes or violates the intellectual property rights of others or infringes or violates the privacy or publicity rights of others;
3. Posting material that is unlawful, obscene, defamatory, threatening, harassing (or encourages harassment), abusive, tortious, defamatory, slanderous, libelous, hateful or embarrassing to any other person as determined by Evolution Nutrition in its sole discretion;
4. Posting material that contain nudity or is obscene, pornographic, sexually explicit, or is otherwise offensive, as determined by Evolution Nutrition in its sole discretion.
5. Posting material that contains graphic or gratuitous violence as determined by Evolution Nutrition in its sole discretion.
6. Posting material that are misleading, malicious or discriminatory as determined by Evolution Nutrition in its sole discretion.
7. Providing resources to or otherwise supporting any organization designated by the United States government as a foreign terrorist organization under section 219 of the Immigration and Nationality Act.
8. Posting advertising or promotional materials;
9. After receiving a warning from Evolution Nutrition, continuing to disrupt the normal flow of dialogue, or posting comments that are not related to the topic being discussed (unless it is clear the discussion is free-form);
10. Posting chain letters or pyramid schemes;
11. Impersonating another person or misrepresenting your affiliation with another person;
12. Distributing viruses, worms, defects, Trojan horses, or other similar destructive or harmful items;
13. Harvesting or otherwise collecting information about others, including email addresses, without their consent for posting or viewing comments;
14. Allowing any other person to use your identification for posting or viewing comments
15. Posting the same note more than once or “spamming”;
16. Using the Evolution Nutrition Services in any manner that could damage, disable, overburden, disrupt, or impair the Evolution Nutrition Services or Site, or the network(s) connected to the Site, or engaging in any other conduct that restricts or inhibits any other person from using or enjoying the Public Area or the Site, or which, in the judgment of Evolution Nutrition, exposes Evolution Nutrition or any of its users or licensors to any liability or detriment of any type;
17. Modifying, adapting, translating, reverse engineering, decompiling, or disassembling the Site or Evolution Nutrition Services;
18. Using any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Site or Evolution Nutrition Services;
19. Framing, reformatting, or otherwise making the Evolution Nutrition Services available to third parties;
20. Creating user accounts using any automated means or under false pretenses;
21. Preparing derivative works based on the Site or Evolution Nutrition Services; or
22. Removing any proprietary notices, labels, or other identifying marks on content provided through the Site or Evolution Nutrition Services.
Evolution Nutrition reserves the right (but is not obligated) to do any or all of the following:
1. Record the dialogue in public chat rooms.
2. Investigate an allegation that a communication does not conform to these Terms of Service and determine in its sole discretion to remove or request the removal of the communication.
3. Remove communications which are abusive, illegal, disruptive or that otherwise fail to conform with these Terms of Use.
4. Terminate a user’s access to any or all Public Areas and/or the Site upon any breach of these Terms of Use.
5. Monitor, edit or disclose any communication in the Public Areas.
6. Edit or delete any communication posted on the Site, regardless of whether such communication violates these standards.
You agree that Evolution Nutrition and its licensors shall have no liability or responsibility to users of the Evolution Nutrition Services or any other person for performance or nonperformance of the aforementioned activities.
Advertisements, Searches, and Links to Other Sites
Evolution Nutrition may provide links to third-party websites. Evolution Nutrition also may select certain sites as priority responses to search terms you enter, and Evolution Nutrition may agree to allow advertisers to respond to certain search terms with advertisements or sponsored content. Evolution Nutrition does not recommend and does not endorse the content on any third-party websites. Evolution Nutrition is not responsible for the content of linked third-party sites, sites framed within the Site, third-party sites provided as search results, or third-party advertisements, and does not make any representations regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms of use or terms of service for such sites. Evolution Nutrition does not endorse any product, service, program or treatment advertised on the Site or in the Evolution Nutrition Software.
You will be able to remit payment for Evolution Nutrition Services through third party payment. Although we may share a limited amount of your information with such third party sites in order to initiate payment, and information so shared will be subject to the Evolution Nutrition Privacy Policy, your dealings with such third party sites will be subject to such third party sites’ privacy policies and terms of service or use, as explained in the preceding paragraph.
Subscription
You agree that you are purchasing an ongoing subscription, and that you will be billed to your designated payment method each month until you cancel your subscription by clicking the “CANCEL YOUR SUBSCRIPTION” button on the “Subscription Settings” tabs in your “Account Settings.” Your subscription will expire at the end of the month in which you request cancellation. After cancellation, you will not have access to the data associated with your account. You can make changes to your account at any time during the month. You may be charged a prorated amount for any changes made to the current month, and your new total monthly charges will be adjusted at the following billing cycle.
Indemnity
You agree to defend, indemnify, and hold Evolution Nutrition, its licensors, affiliates, subsidiaries, employees, contractors, officers, and directors, harmless from and against any claims, actions or demands, liabilities and settlements including without limitation, reasonable legal and accounting fees, resulting from, or alleged to result from, your violation of these Terms of Use.
General
Evolution Nutrition is a California corporation with principal offices in San Diego County, California. Evolution Nutrition makes no claims that Evolution Nutrition, Site, Evolution Nutrition Software and the Content are appropriate or may be downloaded outside of the United States. Access to the Evolution Nutrition Services or Content may not be legal by certain persons or in certain countries. If you access the Evolution Nutrition Services from outside the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.
The following provisions survive the expiration or termination of these Terms of Use for any reason whatsoever: Liability of Evolution Nutrition and Its Licensors, User Submissions, User Submissions – Image, Video, Audio files, Indemnity, Jurisdiction, Notices, and Complete Agreement.
Jurisdiction
You expressly agree that exclusive jurisdiction for any dispute with Evolution Nutrition, or in any way relating to your use of the Evolution Nutrition Services, resides exclusively in the state and federal courts in San Diego, California and you further agree and expressly consent to the exercise of personal jurisdiction in the state and federal courts in San Diego, California, in connection with any such dispute including any claim involving Evolution Nutrition or its licensors, affiliates, subsidiaries, employees, contractors, officers, and directors, including without limitation its service providers and content providers.
These Terms of Use are governed by the laws of the State of California, excluding those laws that direct the application of the laws of another jurisdiction. If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or any other term or condition.
Notices
Evolution Nutrition may be required by state or federal law to notify you of certain events. In addition, Evolution Nutrition may need to notify you from time to time regarding changes to these Terms of Service, the Evolution Nutrition Privacy Policy or the Evolution Nutrition Services. You agree that such notices will be effective upon Evolution Nutrition posting them on the Site, sending them to you through email or postal mail or notifying you via other means required by law. Evolution will use the contact information provided to it by you. If you do not provide Evolution Nutrition with accurate information to contact you, Evolution Nutrition will not be held liable if it fails to notify you.
You consent to receiving any notices regarding these Terms of Service, the Evolution Nutrition Privacy Policy, the Evolution Nutrition Services or any notice required by law, including notice of a any breach of security involving your personally identifiable information, by posting them on the Site or by notifying through email or postal mail.
Notice and Takedown Procedures; Copyright Agent
If you believe any materials accessible on or from the Evolution Nutrition Services infringe your copyright, you may request removal of those materials (or access thereto) from this website by contacting Evolution Nutrition’s copyright agent (identified below) and providing the following information:
1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
3. Your name, address, telephone number and (if available) email address.
4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent or the law.
5. A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
6. A signature or the electronic equivalent from the copyright holder or authorized representative.
Evolution Nutrition’s agent for copyright issues is as follows:
Evolution Nutrition
Attn: Legal
512 Via de la Valle, Suite 301
Solana Beach, CA 92075
In an effort to protect the rights of copyright owners, Evolution Nutrition maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Evolution Nutrition Services who are repeat infringers.
Complete Agreement
Except as expressly provided in a particular “legal notice” on the Site, these Terms of Use and the Evolution Nutrition Privacy Policy constitute the entire agreement between you and Evolution Nutrition with respect to the use of the Evolution Nutrition Services and Content.
Thank you for your cooperation. Questions or comments regarding this website should be submitted to:
Evolution Nutrition
Attn: Operations
512 Via de la Valle, Suite 301
Solana Beach, CA 92075