TERMS OF SERVICE
Last Updated: 2-2-23
These Terms of Service (“Terms”) apply to your access to and use of (i) the website located at https://www.trainerzfitness.com (or any successor links) and all associated web pages, websites, and social media pages (the “Site”) provided by Trainerz Fitness Inc. (“Trainerz”, “we”, “our” or “us”), (ii) mobile applications that may be downloaded to your smartphone or tablet (each an “App”), (iii) online services (including the Site and the App, together the “Services”) and (iv) products accessible via the Site and the App (the “Products”).
BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 18, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND TRAINERZ WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. Further, terms of sale in Section 7 will apply with respect to any Products that you use. If you do not agree to these Terms, do not use our Products or Services.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Products or Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Products or Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
1. Your Information
You may provide certain information to Trainerz in connection with your access or use of our Products Services, or we may otherwise collect certain information about you when you access or use our Products or Services. You agree to receive emails, and other types of communication from Trainerz via the Products or Services using the email address or other contact information you provide in connection with the Products or Services. You represent and warrant that any information that you provide to Trainerz in connection with the Products or Services is accurate.
For information about how we collect, use, share and otherwise process information about you, please see our Privacy Policy
2. Eligibility and Use Restrictions
(a) Age. Users under 18 years of age (or the age of legal majority where you live) may not use our Services. If you are a parent or guardian and you believe that your child under the age of 18 is using our Products or Services without your consent, please contact us at support@trainerzfitness.com.
(b) Jurisdiction. You may only use our Products and Services in jurisdictions authorized by Trainerz. Use of our Products and Services is currently authorized only in the United States.
(c) Suspension. You may not use our Products or Services if you have previously been suspended or removed from the Services.
3. Accounts
You must create an account with Trainerz in order to use some or all of our Products and Services. You may not share or permit others to use your individual account credentials. You will promptly update any information contained in your account if it changes. You must use a strong password for your account that is unique to our Services and not used by you in any other website or online service. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. User Content
(a) Our Services may allow you and other users to create, post, store, and share content, including messages, text, photos, and other materials (collectively, “User Content”). When you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
(b) Except for the license you grant below, as between you and Trainerz, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant Trainerz a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
▪ Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
▪ May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
▪ Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
▪ Impersonates, or misrepresents your affiliation with, any person or entity; ▪ Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
▪ Contains any private or personal information of a third party without such third party’s consent;
▪ Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Trainerz or others to any harm or liability of any type.
(d) Enforcement of this Section 4 is solely at Trainerz’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(e) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
▪ delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
▪ terminate or suspend your access to all or part of the Products or Services if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
▪ take any action with respect to your User Content that is necessary or appropriate, in Trainerz’s sole discretion, to ensure compliance with applicable law and these Terms or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
▪ cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services.
5. Prohibited Conduct
(a) You will not use our Products or Services if you are not eligible to use our Products or Services in accordance with Section 2 and will not use our Products or Services other than for their intended purpose. Further, you will not, in connection with our Products or Services:
▪ Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
▪ Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
▪ Use or attempt to use another user’s account or information without authorization from that user and Trainerz;
▪ Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell or resell our Products or Services;
▪ Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Products or Services, except as expressly permitted by us or our licensors;
▪ Modify our Products or Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ Use our Products or Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Products or Services or that could damage, disable, overburden, or impair the functioning of our Products or Services in any manner;
▪ Reverse engineer any aspect of our Products or Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Products or Services;
▪ Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Products or Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that Trainerz grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. Trainerz reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
▪ Develop or use any applications that interact with our Products or Services without our prior written consent;
▪ Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Link to any online portion of the Products or Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by the Trainerz; or
▪ Use our Products or Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section 5 is solely at Trainerz’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
6. Product Listings
The Services may make available listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products (“Listings”). Such Products may be made available by Trainerz and may be made available for any purpose, including general information purposes. We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only. We make reasonable efforts to accurately display the attributes of Products, including the applicable colors; however, the actual colors you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.
7. Terms of Sale
By purchasing a Product through the Services, you agree to the terms set forth in this Section 7 (the “Terms of Sale”).
a) Eligibility. To complete your purchase, you must have a valid billing and shipping address within a country that can be selected as part of the checkout process on the Site or App (the “Territory”). We make no promise that Products available on the Site and App are appropriate or available for use in locations outside the Territory.
b) Restrictions. You may only purchase Products for personal use by either yourself or your intended recipient of the Products. The Products are not authorized for resale. We may place a limit on the quantities that may be purchased per order, per account, per payment card, per person, or per household. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.
c) Price. Prices shown on the Site and in the App exclude all taxes or charges for shipping and handling. Taxes and shipping and handling costs will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices on the Site and in the App are subject to change at any time without notice. We do not collect taxes on merchandise shipped to a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase from the Site and in the App.
d) Payment. If you wish to make a transaction, you may be asked to supply certain relevant information, such as your payment card number and its expiration date, your billing address, and your shipping information, to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a transaction. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any transaction. You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes and shipping and handling charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or
agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
e) Order Confirmation; Acceptance. You will have the opportunity to review and confirm your order, including delivery address, payment method, and other details of your order. Although we may confirm orders by email, the receipt of an email order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Product or Service. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.
f) Shipping; Delivery. Products will be shipped to an address designated by you, if applicable, so long as such address is complete and complies with the shipping restrictions set forth in these Terms or otherwise contained on the Services. You will pay all shipping and handling charges specified during the ordering process. All transactions are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.
g) Order Delays; Cancellation. We reserve the right to delay, refuse, or cancel any order prior to delivery. For example, if there are errors on the Site or made in connection with your order or inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
h) Refunds and Exchanges. Refunds will be made to the same method of payment and account used to place the order. We do not currently provide for exchanges.
i) Reservation of Rights. Trainerz reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any transaction; to alter the payment option for Products; and to refuse to provide any user with any Product.
8. Promotions
Any sweepstakes, contests, raffles, surveys, games, or similar promotions (collectively, “Promotions”) made available through the Services may be governed by rules that are separate from these Terms. If you participate in any Promotions, please review the applicable rules as well as our Privacy. The rules for a Promotion conflict with these Terms, the Promotion rules will govern.
9. Ownership; Limited License
The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and Products, and all intellectual property rights therein and thereto, are owned by Trainerz or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Products and Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms(including Sections 4 and 5), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services as a trainee for your own personal, noncommercial use and as a trainer for your personal, commercial use and solely with respect to any applications included in the Services, install and use such application on a mobile or personal device that you own or control. Any use of the Products or Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Any applications included in the Services are licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the applicable application and remove (that is, uninstall and delete) the applicable application from your mobile or personal device.
10. Trademarks
Trainerz Fitness Inc. and key trademarks and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of Trainerz and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Products or Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
11. Feedback
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Trainerz or our Products or Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback, or Products or Services, or to improve or develop new products, services, or the Products or Services in Trainerz’s sole discretion. Trainerz will exclusively own all improvements to, or new, Trainerz products, services, or Products or Services based on any Feedback. You understand that Trainerz may treat Feedback as nonconfidential.
12. Repeat Infringer Policy; Copyright Complaints
(a) Our Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our "DMCA Policy").
(b) Reporting Claims of Copyright Infringement. If you believe that any content on our Products or Services infringe any copyright that you own or control, you may notify Trainerz’s designated agent (your notification, a “DMCA Notice”) as follows:
Designated Agent: Copyright Agent
Address: PO Box 1395
Gilroy, CA 95020
Telephone Number: 669-500-0882
Email Address: support@trainerzfitness.com
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Trainerz for certain costs and damages.
13. Third-Party Content
(a) Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services and Products. You acknowledge that
(a) the use and availability of the Products Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Products and Services operate.
(b) Specifically, certain items of independent, third-party code may be utilized in connection with the Products or Services that may be subject to open-source licenses (“Open-Source Software”). The Open-Source Software is licensed to us under the terms of the license that accompanies such Open-Source Software and may be licensed to you under the terms of the same license or through other terms. Nothing in the Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open Source Software.
(c) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
(d) We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Products or Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Products and Services.
14. Indemnification
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Trainerz and our officers, directors, agents, partners, and employees (individually and collectively, the “Trainerz Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Indemnified Claims”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (e) your conduct in connection with the Services. You will promptly notify Trainerz Parties of any third-party Indemnified Claims, cooperate with Trainerz Parties in defending such Indemnified Claims, and pay all fees, costs, and expenses associated with defending such Indemnified Claims (including attorneys' fees). The Trainerz Parties will have control of the defense or settlement, at Trainerz's sole option, of any third-party Indemnified Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Trainerz or the other Trainerz Parties.
15. Disclaimers
Your use of our Products and Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Products, Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. Trainerz disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, Trainerz does not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While Trainerz attempts to make your use of our Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Products or Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. TRAINERZ DISCLAIMS AND ASSUMES NO RESPONSIBILITY FOR ANY CONDUCT OF YOU OR ANY OTHER PERSON, ON OR OFF THE SERVICES. You assume the entire risk as to the quality and performance of the Products and Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of Trainerz, Trainerz Parties, and Trainerz’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
16. Limitation of Liability
(a) To the fullest extent permitted by applicable law, Trainerz and the other Trainerz Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if Trainerz or the other Trainerz Parties have been advised of the possibility of such damages.
(b) The total liability of Trainerz and the other Trainerz Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Products or Services giving rise to the claim.
(c) The limitations set forth in this Section 16 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of Trainerz or the other Trainerz Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
17. Release
To the fullest extent permitted by applicable law, you release Trainerz and the other Trainerz Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users (including between trainers and trainees) and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
18. Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND TRAINERZ TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND TRAINERZ FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND TRAINERZ AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. TRAINERZ AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) For any dispute or claim that you have against Trainerz, that Trainerz has against you or that you have, or Trainerz has, in each case arising from, relating to, or stemming from these Terms, our Products, Services, or any aspect of the relationship between you and Trainerz as relates to these Terms, our Products or our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and Trainerz agree to attempt to first resolve the Claim informally via the following process. If you assert a Claim against Trainerz, you will first contact Trainerz by sending a written notice of your Claim (“Claimant Notice”) to Trainerz by certified mail addressed to Trainerz Fitness Inc., PO Box 1395, Gilroy, CA 95020 or by email to support@trainerzfitness.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If Trainerz asserts a Claim against you, Trainerz will first contact you by sending a written notice of Trainerz’s Claim (“Trainerz Notice”), and each of a Claimant Notice and Trainerz Notice, a “Notice”) to you via email to the primary email address associated with your account. The Trainerz Notice must (i) include the name of a Trainerz contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought. If you and Trainerz cannot reach an agreement to resolve the Claim within thirty (30) days after you or Trainerz receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Trainerz first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
(b) Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or Trainerz, including any disputes in which you or Trainerz seek injunctive or other equitable relief for the alleged unlawful use of your or Trainerz’s intellectual property or other infringement of your or Trainerz’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 18(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(c) These Terms affect interstate commerce, and the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.
(d) All Claims must be submitted to the American Arbitration Association (“AAA”) and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:
1. YOU AND TRAINERZ AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND TRAINERZ ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against TRAINERZ or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
2. For any arbitration you initiate, you will pay the consumer filing fee, and Trainerz will pay the remaining AAA fees and costs. For any arbitration initiated by Trainerz, Trainerz will pay all AAA fees and costs.
3. For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (i) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (ii) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (iii) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
4. If you or Trainerz submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Trainerz agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Trainerz agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
5. The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
6. The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Trainerz or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Trainerz understand and agree that when twenty-five (25) or more similar claims are asserted against Trainerz or you by the same or coordinated counsel or are otherwise resolved, your or Trainerz’s Claim might be delayed. For such coordinated actions, you and Trainerz also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Trainerz shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Trainerz or you.
(e) One Year to Assert Claims. To the extent permitted by law, any Claim by you or Trainerz relating in any way to these Terms, our Products or Services, or any aspect of the relationship between you and Trainerz as relates to these Terms, our Products, or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and Trainerz will not have the right to assert the Claim.
(f) You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at support@trainerzfitness.com or by certified mail addressed to Trainerz Fitness Inc., PO Box 1395, Gilroy, CA 95020. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.
(g) If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 18 or the parties ’ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis,such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
(h) Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 18 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
19. Governing Law
Any Claims will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 19, then the state and federal courts located in the County of Santa Clara, California, will have exclusive jurisdiction. You and Trainerz waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
20. Modifying and Terminating Our Products or Services
We reserve the right to modify our Services or to suspend or terminate providing all or part of our Products or Services at any time; charge, modify, or waive any fees required to use the Products or Services; or offer opportunities to some or all end users of the Products or Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Products or Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Products and Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by Trainerz in writing. You also have the right to stop using our Products and Services at any time, and you may terminate these Terms by ceasing use of our Products and Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
21. Severability
If any portion of these Terms other than Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
22. Export Control
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
23. Miscellaneous
(a) Trainerz’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
(b) If you have a question or complaint regarding the Products or Services, please send an email to support@trainerzfitness.com. You may also contact us by writing to Trainerz Fitness Inc., PO Box 1395, Gilroy, CA 95020, or by calling us at 669-500-0882. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
24. Additional Terms Applicable to Mobile Devices
The following terms apply if you install, access, or use the Services on any device that contains the iOS mobile operating system (the “iOS App”) developed by Apple Inc. (“Apple”).
(a) Acknowledgement. You acknowledge that these Terms are concluded solely between us, and not with Apple. Trainerz, not Apple, is solely responsible for this iOS App and the content thereof. You further acknowledge that the usage rules for the iOS App are subject to any additional restrictions set forth in the Usage Rules for the Apple iOS App Store Terms of Service as of the date you download the App, and in the event of any conflict, the Usage Rules in the Apple iOS App Store will govern if they are more restrictive. You acknowledge that you have had the opportunity to review the Usage Rules.
(b) Scope of License. The license granted to you is limited to a non-transferable license to use the iOS App on any iPhone, iPod touch, iPad, or any other Apple device that you own or control as permitted by the Usage Rules set forth in the Apple iOS App Store Terms of Service.
(c) Maintenance and Support. You and Trainerz acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
(d) Warranty. You acknowledge that Apple is not responsible for any product warranties, whether express or implied by law, with respect to the App. In the event of any failure of the iOS App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, paid to Apple for the iOS App by you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. The parties acknowledge that to the extent that there are any applicable warranties, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any such applicable warranty would be the sole responsibility of Trainerz. However, Trainerz has disclaimed all warranties of any kind with respect to the App, and therefore, there are no warranties applicable to the App.
(e) Product Claims. You and Trainerz acknowledge that as between Apple and Trainerz, Trainerz, not Apple, is responsible for addressing any claims relating to the iOS App or your possession and/or use of the iOS App, including, but not limited to (a) product liability claims, (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement, and (c) claims arising under consumer protection or similar legislation.
(f) Intellectual Property Rights. The parties acknowledge that, in the event of any third-party claim that the iOS App or your possession and use of the iOS App infringe that third party’s intellectual property rights, Trainerz, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required under these Terms.
(g) Developer Name and Address. Any questions, complaints, or claims with respect to the iOS App should be directed to:
Trainerz Fitness Inc.
PO Box 1395
Gilroy, California 95020
(h) Third-Party Terms of Agreement. You will comply with any applicable third-party terms when using the Services.
(i) Third-Party Beneficiary. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof.