CUSTOMER AGREEMENT AND TERMS OF SERVICE
1.DESCRIPTION OF SERVICE.
FitBizMan ("FitBizMan) operates the FitBizMan.com website (the "Site") as a Health And Fitness Lifestyle Coaching subdivision of BodyBuzz Fitness, LLC
FitnessGenerator, Inc. (“BodyBuzz Fitness”) operates the Bodybuzzfitness.com web site (the "Site") to offer you access to training programs and other fitness information that has been independently developed for you by independently selected fitness coaches who is affiliated and unaffiliated with Bodybuzzfitness.com. Use of the Site is governed by this agreement (this “Agreement”) and the terms of service (“TOS”) described herein.
2. ACCEPTANCE OF TERMS OF SERVICE.
To gain access to the fitness programs and other information developed for you by your personal trainer, you must complete the customer registration process and agree to the following TOS. You must indicate your consent to be bound by this Agreement and the TOS described herein by clicking the “I AGREE” button relating to this Agreement.
3.CUSTOMER REGISTRATION REQUIREMENTS.
To open an account, you will need to select a user-name and a password. You will also need to complete a profile (which will contain certain personally identifiable information) by providing FitnessGenerator with true, accurate, current and complete information as prompted by the Site’s online registration form. If you provide any information that is untrue, inaccurate, not current or incomplete, or Bodybuzzfitness has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Bodybuzzfitness has the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof). All information that you provide to us will be subject to the terms of our Privacy Statement.
You may not share your user-name or password with others. Bodybuzzfitness may refuse to permit you to use any user-name or password that Bodybuzzfitness, in its sole discretion, deems offensive.
4. SECURITY.
You will be solely responsible for maintaining the confidentiality of your password, which you will not have to reveal to any representative or agent of Bodybuzzfitness. You agree to (a) immediately notify memberservices@fitbizman.com of any known or suspected unauthorized use(s) of your account or password or of any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your password and (b) ensure that you exit from your account at the end of each session. Bodybuzzfitness cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 4.
5.RESPONSIBILITY FOR ACCOUNT ACTIVITY.
You are solely responsible for all usage or activity on your account or password, including use of your account or password by any third party. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your account, at Bodybuzzfitness sole discretion.
6. FEES AND PAYMENTS/LIMITED ACCESS TO THE SITE.
Bodybuzzfitness does not currently impose fees for access to that portion of the Site on which the training program developed for you by fitness coaches may be found (the “Member Area”). However, your fitness coach may charge fees for granting you access to theMember Area. All such access fees, if any, will be imposed by and be payable directly by you to your fitness coach without involvement by Bodybuzzfitness.
If from time to time, you license, purchase or access certain products and services from or through the Site (other than access to the Member Area), you will be charged additional fees as and when you make such purchases. Such fees will be clearly posted, and no fee will be charged to you unless you have agreed in advance to pay the fee for your specific purchase.
You agree not to access any portion of the Site other than the Membert Area without Bodybuzzfitness consent.
7. CHANGES TO TOS.
Bodybuzzfitness may change, add or delete any one or more of the TOS by providing notice to you as set forth in Section 22 of this Agreement or by posting such changes on the Site. If any future changes are unacceptable to you, you may cancel your account by sending an e-mail to: cancel@fitbizman.com. Such cancellation will become effective upon the expiration of the period for which you have paid your membership subscription. Your failure to cancel your account following the posting of notice of any changes will indicate your acceptance of the TOS as changed.
8. CHANGES TO SERVICE.
Bodybuzzfitness may change, modify, add, suspend or discontinue, temporarily or permanently, any aspect of the Site at any time, including the availability of any feature, database, or content, with or without notice to you. Bodybuzzfitness may also impose limits on certain features and services or restrict your access to part or all of the Site without notice to you. You agree that Bodybuzzfitness shall not be liable to you or to any third party for any such change, modification, addition, suspension, discontinuance, limitation or restriction.
9. PERMITTED USES AND RESTRICTIONS ON USE OF CONTENT/COPYRIGHT.
Whenever used in this Agreement, the term "Content" shall mean any and all articles, databases, software, books, magazines, photographs, images, graphics, illustrations, audio, video, and any other content that is offered to you by or through the Site.
Content available through the Site originates from Bodybuzzfitness and a variety of third party providers, including your fitness coach (each, a “TPP”).
Bodybuzzfitness and each TPP is either the owner or an authorized licensee of such Content and each TPP has licensed Bodybuzzfitness to make its Content available to you through the Site. In order to protect and preserve Bodybuzzfitness’s and the TPPs copyrights and other intellectual property rights in their respective Content, you agree to the following with respect to any specific item of Content that you license or that is otherwise made available to you through the Site:
a. You will abide by all copyright notices and copyright directives relating to or provided with the Content.
b.You will not, directly or indirectly, reproduce, copy, transmit, distribute, display, publish or print any Content in any form or medium or (ii) sell, loan or license any Content.
c. You will not, in whole or in part, modify, adapt, transform, translate or create any derivative work based on the Content in a manner that would infringe any person’s copyright or other proprietary rights therein.
d. You will not remove any copyright notice from the Content.
10. DISCLAIMER OF WARRANTIES.
a. YOUR USE OF THE SITE AND ANY AND ALL INFORMATION CONTAINED THEREIN OR AVAILABLE, DIRECTLY OR INDIRECTLY, THEREFROM, IS AT YOUR SOLE RISK. THE SITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BODYBUZZFITNESS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b.BODYBUZZFITNESS MAKES NO WARRANTY THAT (i) THE SITE WILL MEET YOUR REQUIREMENTS, (ii) THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) ANY PERSON WILL ACHIEVE A DESIRED RESULT OR RESULTS FROM THE USE OF ANY INFORMATION AVAILABLE ON OR THROUGH THE SITE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTATIONS, OR (V) THE ADVICE, INSTRUCTIONS OR OTHER INFORMATION GIVEN TO YOU BY YOUR PERSONAL TRAINER WILL BE SAFE, USEFUL OR APPROPRIATE.
c.ANY CONTENT OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FORM THE DOWNLOAD OF ANY SUCH CONTENT OR MATERIAL.
d.NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BODYBUZZFITNESS OR THROUGH OR FROM THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
11.LIMITATION OF LIABILITY .
YOU EXPRESSLY UNDERSTAND AND AGREE THAT BODYBUZZFITNESS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF BODYBUZZFITNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SITE; (ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; (iv) PHYSICAL OR EMOTIONAL INJURY OR DISTRESS OR (iv) ANY OTHER MATTER RELATING TO THE SITE AND/OR THE USE OF INFORMATION CONTAINED THEREIN OR AVAILABLE THEREFROM AT ANY TIME. IN ADDITION, THE AGGREGATE AMOUNT OF FITNESSGENERATOR’S LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF ANY FEES OR CHARGES PAID BY YOU TO BODYBUZZFITNESS UNDER THIS AGREEMENT OR THROUGH THE SITE, IF ANY.
12. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 10 AND 11 MAY NOT APPLY TO YOU.
13. WAIVER, RELEASE OF LIABILITY AND COVENANT NOT-TO-SUE.
In consideration of your being permitted to use the Site and the Fitness Information (as defined below), you, on your own behalf and on behalf of your spouse, heirs, trustees, legal representatives, executors and assigns, hereby agree to release BodybuzzFitness and its past, present and/or future shareholders, members, managers, partners, trustees, officers, directors, employees, consultants, agents, affiliates, administrators, attorneys, successors and assigns (and their respective past, present and/or future shareholders, members, managers, partners, trustees, officers, directors, employees, consultants, agents, affiliates, administrators, attorneys, successors and assigns) (each, a “Released Party”) from any and all liability for injury, death, damage, cost, expense and other loss suffered or incurred by you as a direct or indirect result of your use of any training, athletic, health, wellness, exercise, fitness or similar information (collectively, “Fitness Information”) that is, directly or indirectly, available from or through the Client Area or any other portion of the Site at any time.
In further consideration of your being permitted to use the Site and the Fitness Information, you hereby agree that you will not, at any time hereafter, commence, maintain, prosecute, participate in as a party, or permit to be filed by any other person on your behalf, any action or proceeding of any kind, judicial or administrative, in any court or agency against any Released Party with respect to any act, omission, statement, information, transaction or occurrence that relates, directly or indirectly, to your use of the Site or the Fitness Information at any time.
You understand and acknowledge that (i) all Fitness Information that may be provided to you will be provided by fitness coaches who you have independently selected without input or advice from any Released Party, (ii) such fitness coach has not relied upon, nor will such fitness coach rely upon, any Released Party in determining the type, content or frequency of the Fitness Information that may be provided to you and (iii) no Released Party has reviewed or passed upon (nor will any Released Party review or pass upon) the fitness program designed for you (or other Fitness Information that may be provided to you) by your personal trainer.
Your acknowledge and agree that your are aware that activities associated with use of the Fitness Information may range from vigorous cardiovascular activity (e.g., aerobics, bicycles, steppers, treadmills, elliptical trainers) to the strenuous exertion of strength training (e.g., free weights, weight machines). You acknowledge and agree that you understand that these and other physical activities involve certain inherent risks, including but not limited to, death, serious neck and spinal injuries, resulting in complete or partial paralysis, heart attacks, and injury to the bones, joints or muscles. Your use of the Fitness Information is voluntary and with full knowledge of such inherent participatory dangers and you hereby agree to assume any and all inherent risks of property damage, personal injury, and death.
You understand and agree that you should consult with your personal physician (i) before utilizing any of the Fitness Information and (ii) during the course of your use of the Fitness Information if you have any concerns or questions about the impact of such use on your medical condition. You acknowledge and agree that you are not relying, and will at no time rely, on any Released Party to provide you with medical advice of any kind (including advice pertaining to your use of the Fitness Information), or to advise you of the medical risks associated with your use of the Fitness Information. You acknowledge and agree that no Released Party will be liable for any information or advice given to you related to your use of the Fitness Information and that you will not sue any Released Party based on such information or advice.
You agree that you will not use any item of equipment described or referred to in the Fitness Information unless instructed in the proper use of such equipment by your fitness coach or other trained professional (and who, in any event, is not a Released Party).
You acknowledge and agree that the release, waiver and covenant not-to-sue contained herein is intended to be as broad and inclusive as permitted by the laws of Connecticut and agree that if any portion is held invalid, the remainder of this release, waiver and covenant not-to-sue will continue in full legal force and effect.
You acknowledge and agree that you have read this release, waiver and covenant not-to-sue and fully understand that by clicking the “I AGREE” button relating to this Agreement, you are giving up legal rights and/or remedies that may be otherwise be available to you.
14. LINKS.
The Site from time to time may contain links to and from various third party sites on the World Wide Web. You acknowledge that such third party sites are completely independent of the Site and that FitnessGenerator has no responsibility or liability, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, goods or services available on or through any such site. If you have any questions or concerns about such third party sites, you should contact the site administrator or web-master of the third-party site.
15. COMMUNICATIONS BETWEEN FITNESSGENERATOR AND CUSTOMERS.
BodybuzzFitness reserves the right to provide you with information about products and services from BodybuzzFitness and third party vendors. BodybuzzFitness also reserves the right to send electronic mail to you for the purpose of informing you of changes or additions to the Site.
16. DISCLOSURE OF USAGE AND DEMOGRAPHIC INFORMATION.
BodybuzzFitness reserves the right to disclose certain information about you. For more information, please read the Privacy Statement.
17. FORUMS AND DISCUSSIONS.
From time to time, the Site may conduct or facilitate electronic chat rooms, bulletin boards, news groups, forums and discussions on subjects of interest to its customers (collectively, "Forums"). In addition to any terms or conditions of participation that may be posted with respect to any specific Forum, the following terms and conditions shall apply with respect to any Forum in which you choose to participate and with respect to any content of whatever nature ("Materials") that you upload to, publish or otherwise distribute or transmit (collectively "transmit") in, on or through a Forum or otherwise through the Site.
With respect to any Material that you transmit in, on or through a Forum or otherwise through the Site, you hereby grant to BodybuzzFitness a perpetual, royalty-free, irrevocable, non-exclusive and fully sub-licensable right and license to reproduce, modify, adapt, publish translate, create derivative works from, distribute, perform and display such Material (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
18. COMPLIANCE WITH LAW/U.S. AND INTERNATIONAL.
In view of the global nature of the World Wide Web, you agree to comply with all local laws, rules and regulations, including those governing your use of Content and on-line conduct. Specifically, but without limitation, you shall comply with all applicable laws, rules and regulations regarding the transmission of technical data and software exported from the United States or the country in which you reside.
19. REPRESENTATIONS AND WARRANTIES/INDEMNITY.
You represent, warrant and covenant that no Materials of any kind submitted through your account will (a) violate or infringe upon the rights of any third party (including copyright, trademark, privacy or other personal or proprietary rights) or (b) contain libelous, defamatory or otherwise unlawful material.
You hereby agree to indemnify, defend and hold harmless BodybuzzFitness, its subsidiaries, affiliates, employees, agents, co-branders and other partners (collectively, the "Indemnified Parties") from and against any and all liability, damage, cost and expense (including reasonable attorneys' fees) incurred by the Indemnified Parties (or any of them) in connection with any claim arising out of or relating to (i) your use of the Site or any Fitness Information, (ii) a breach by you of any of your representations, warranties or covenants in this Section 19 or elsewhere in this Agreement, (iii) your connection to the Site or (iv) any violation of the TOS by you or any user of your account. You agree to fully cooperate in the defense of any such claim.
20. TERMINATION BY YOU.
You may terminate your account at any time by sending an e-mail to: cancel@fitbizman.com. Upon termination, you will receive an automated confirmation via e-mail that the request was received. BodybuzzFitness will not be required to refund any portion of the membership fees paid by you to your fitness coach for periods after the effective date of the termination.
21. TERMINATION BY BODYBUZZFITNESS.
You agree that BodybuzzFitness, in its sole discretion, may terminate your password, your account and/or your use of the Site, and remove and discard any Material within the Site, at any time and for any reason, including, without limitation, for lack of use of the Site or if BodybuzzFitness believes that you have violated or acted inconsistently with the letter or spirit of the TOS. BodybuzzFitness may also, in its sole discretion and at any time, discontinue providing the Site, or any part thereof, with or without notice. You agree that any termination of your access to the Site under any provision of the TOS may be effected without prior notice, and acknowledge and agree that BodybuzzFitness may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Site. Further, you agree that BodybuzzFitness shall not be liable to you or any third-party for any termination of your access to the Site. BodybuzzFitness will not be required to refund any portion of the membership fees paid by you to your fitness coach for periods after the effective date of the termination.
22. ENFORCEMENT COSTS.
If any legal action or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any provision of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees, sales and use taxes, court costs and all expenses even if not taxable as court costs (including, without limitation, all such fees, taxes, costs and expenses incident to arbitration, appellate, bankruptcy and post-judgment proceedings), incurred in that action or proceeding, in addition to any other relief to which such party or parties may be entitled. Attorneys' fees shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes and all other charges billed by the attorney to the prevailing party.
23. CHOICE OF LAW/STATUTE OF LIMITATIONS.
This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Connecticut. Any action to enforce this Agreement shall be brought in the federal or state courts located in the State of Connecticut. You agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Site or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.
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