Terms & Conditions
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING AND USING THE 321 FITNESS PLATFORM. BY USING ANY PART OF THE 321 FITNESS PLATFORM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT WISH TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE 321 FITNESS OR ANY MATERIALS AND MUST IMMEDIATELY CEASE SUCH USE. 321 FITNESS, LTD. MAY MODIFY THIS AGREEMENT AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE SITE AND, IF YOU HAVE REGISTERED FOR AN ACCOUNT WITH 321 FITNESS (AS DESCRIBED BELOW), WE WILL NOTIFY YOU OF SUCH CHANGES VIA EMAIL. IF YOU DO NOT AGREE TO CHANGES IN THESE TERMS, THEN CANCEL YOUR REGISTRATION IN YOUR ACCOUNT SETTINGS WITHIN 30 DAYS OF YOUR RECEIPT OF OUR NOTICE OF CHANGES. YOUR USE OF THE 321 FITNESS PLATFORM FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. IF WE REQUEST, YOU AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.
THE INFORMATION, CONTENT AND OTHER MATERIALS POSTED ON OR ACCESSIBLE THROUGH THE 321 FITNESS PLATFORM ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. 321 FITNESS DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION THAT MAY BE MENTIONED ON THE 321 FITNESS PLATFORM. RELIANCE ON ANY INFORMATION PROVIDED BY 321 FITNESS, ITS AFFILIATED COMPANIES, CONTRIBUTORS TO, OR OTHER USERS OF THE 321 FITNESS PLATFORM IS SOLELY AT YOUR OWN RISK.
YOU SHOULD CONSULT YOUR PHYSICIAN OR OTHER HEALTH CARE PRACTITIONER BEFORE STARTING ANY EXERCISE PROGRAM. THIS IS PARTICULARLY TRUE IF YOU OR YOUR FAMILY HAVE A HISTORY OF HIGH BLOOD PRESSURE OR HEART DISEASE, ARE PREGNANT, OR IF YOU HAVE EVER EXPERIENCED DISCOMFORT WHILE EXERCISING. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE 321 FITNESS PLATFORM.
NOTE: THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH 321 FITNESS. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW.
Using the 321 FITNESS Platform.
By using the 321 FITNESS Platform, you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old (a “Minor”), that you are using the 321 FITNESS Platform with the consent of your parent or legal guardian who has agreed to this Agreement. If you are a parent or legal guardian agreeing to this Agreement for the benefit of a Minor, you are fully responsible for the Minor’s use of the 321 FITNESS Platform, including all legal liability he or she may incur. If you are not at least 13 years old, you may not use the 321 FITNESS Platform.
Please note that some Services and Materials may contain content for which you must be at least of a specified age to access and view. By accessing any such materials, you represent and warrant that you are old enough to view such content.
In this Agreement we are granting you a limited, personal, non-exclusive and non-transferable license to access the Sites, use the Services, and display the Materials; your right to use the Materials is conditioned on your compliance with this Agreement. You have no other rights in the Sites, Services or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit the Sites, the Services or any of the Materials in any manner. If you make copies of any of the Materials then we ask that you be sure to keep on the copies all of our copyright and other proprietary notices as they appear on the Sites.
Unfortunately, if you breach any of the terms of this Agreement, the above license will terminate automatically and you must immediately destroy any downloaded or printed Materials (and any copies thereof).
Accounts, Passwords and Security.
Certain Sites or Services require you to create an account with 321 FITNESS before you are permitted to access and use them. If you wish to create an account you must complete the registration process by providing 321 FITNESS with current, complete and accurate information, as prompted by the applicable registration form. All the information that you provide when registering for an account must be accurate, complete and up to date. You may change, correct or remove any information from your account by logging into your account directly and making the desired changes. You acknowledge that by providing any information to 321 FITNESS which is untrue, inaccurate, not current or incomplete, 321 FITNESS reserves the right to terminate this Agreement and your continued access and use of the 321 FITNESS Platform.
As part of the registration process, you will be asked to select a username and password. You are entirely responsible for maintaining the security and confidentiality of your account and password. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. You agree to notify 321 FITNESS immediately of any unauthorized use of your account or any other breach of security. 321 FITNESS will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by 321 FITNESS or another party due to someone else using your account or password.
To be clear, we authorize your use of the 321 FITNESS Platform only for personal use (“Permitted Purpose”). Any other use of the 321 FITNESS Platform beyond the Permitted Purpose is prohibited and, therefore, constitutes unauthorized use of the 321 FITNESS Platform. This is because as between you and 321 FITNESS, all rights in the 321 FITNESS Platform and Materials remain our property.
Unauthorized use of the 321 FITNESS Platform may result in violation of various United States and international copyright laws. If we determine that you do act in bad faith in violation of this Agreement, or if we determine that your actions fall outside of reasonable community standards, we may, in our sole discretion, terminate your right to use the 321 FITNESS Platform. By way of example, you specifically agree that you shall not:
- use the 321 FITNESS Platform or any Materials for any public or commercial purpose, which includes use of the Materials on another site or through a networked computer environment;
- copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any Materials, information, software, products or services obtained through the 321 FITNESS Platform;
- access the 321 FITNESS Platform by any means other than through the standard industry-accepted or 321 FITNESS-provided interfaces;
- transmit any message, information, data, text, software or image, or other content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable which may invade another’s right of privacy or publicity;
- impersonate any person or entity, including without limitation, an 321 FITNESS official, forum leader, chat room monitor, guide or host, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
- post or transmit any material that contains a virus or corrupted data;
- delete any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
- use of any 321 FITNESS Platform’s communications features in a manner that adversely affects the availability of its resources to other users (e.g., excessive shouting, use of all caps, or flooding continuous postings of repetitive text);
- post or transmit any unsolicited advertising, promotional materials, “junk mail”, “spam,” “chain letters,” “pyramid schemes” or any other form of solicitation or any non-resume information such as opinions or notices, commercial or otherwise;
- violate any applicable local, state, national or international law;
- upload or transmit any material that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- delete or revise any material posted by any other person or entity;
- manipulate or otherwise display the 321 FITNESS Platform or any Materials by using framing or similar navigational technology;
- register, subscribe, attempt to register, attempt to subscribe, unsubscribe, or attempt to unsubscribe, any party for any Site, Services or Materials if you are not expressly authorized by such party to do so; or
- use the 321 FITNESS Platform for any purpose that is unlawful or prohibited by this Agreement. You may not use the 321 FITNESS Platform in any manner that could damage, disable, overburden or impair 321 FITNESS’ servers or networks, or interfere with any other user’s use and enjoyment of the 321 FITNESS Platform. Furthermore, you may not attempt to gain unauthorized access to any of the 321 FITNESS Platform, accounts, computer systems or networks connected to 321 FITNESS through hacking, password mining or any other means. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the 321 FITNESS Platform.
Comments and Commenting.
321 FITNESS allows posting of comments or provide chat functionality on the 321 FITNESS Platform. Any user failing to comply with the terms and conditions of this Agreement may be expelled from and refused continued access to, the ability to post comments in the future. 321 FITNESS or its designated agents may remove or alter any user-created comments at any time for any reason, but are not required to do so. Information and content posted within these public forums may be provided by 321 FITNESS staff, 321 FITNESS’ outside contributors, or by users not connected with 321 FITNESS, some of whom may employ anonymous user names. 321 FITNESS expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these posted comments. The opinions expressed in these comments are solely the opinions of the participants, and do not reflect the opinions of 321 FITNESS or any of its subsidiaries or affiliates.
Certain functionality of the 321 FITNESS Platform may permit you to submit feedback, information, data, text, images, messages, or other materials (each, a “User Submission”). You agree that you are solely responsible for all of your User Submissions and that each such User Submission is considered both non-confidential and non-proprietary. We do not guarantee that you will be able to edit or delete any User Submission you have submitted.
By submitting any User Submission, you are promising us that:
- You own all rights in your User Submission (including, without limitation, all rights to the reproduction and display of your User Submission) or, alternatively, you have acquired all necessary rights in your User Submission to enable you to grant to us the rights in your User Submission as described in this Agreement;
- You have paid and will pay in full all license fees, clearance fees, and other financial obligations, of any kind, arising from any use or commercial exploitation of your User Submission;
- Your User Submission does not infringe the copyright, trademark, patent, trade secret, or other intellectual property rights, privacy rights, or any other legal or moral rights of any third party;
- You voluntarily agree to waive all “moral rights” that you may have in your User Submission;
- Any information contained in your User Submission is not known by you to be false, inaccurate, or misleading;
- Your User Submission does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising);
- Your User Submission is not, and may not reasonably be considered to be, defamatory, libelous, hateful, racially, ethnically, religiously, or otherwise biased or offensive, unlawfully threatening, or unlawfully harassing to any individual, partnership, or corporation, vulgar, pornographic, obscene, or invasive of another’s privacy;
- You were not and will not be compensated or granted any consideration by any third party for submitting your User Submission;
- Your User Submission does not incorporate materials from a third-party website, or addresses, email addresses, contact information, or phone numbers (other than your own or otherwise have the right to provide);
- Your User Submission does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files;
- Your User Submission does not contain any information that you consider confidential, proprietary, or personal; and
- Your User Submission does not contain or constitute any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation.
By submitting a User Submission, you grant to us an irrevocable, perpetual, transferable, non-exclusive, fully paid, worldwide, royalty-free license (sublicensable through multiple tiers) to:
- use, distribute, reproduce, modify, adapt, publish, translate, publicly perform, and publicly display your User Submission (or any modification thereto), in whole or in part, in any format or medium now known or later developed;
- use (and permit others to use) your User Submission in any manner and for any purpose (including, without limitation, commercial purposes) that we deem appropriate in our sole discretion (including, without limitation, to incorporate your User Submission or any modification thereto, in whole or in part, into any technology, product, or service); and
- display advertisements in connection with your User Submission and to use your User Submission for advertising and promotional purposes.
We may, but are not obligated to, pre-screen User Submissions or monitor any area of any 321 FITNESS Platform through which User Submissions may be submitted. We are not required to host, display, or distribute any User Submissions on or through the 321 FITNESS Platform and may remove at any time or refuse any User Submissions for any reason. You understand that when using the 321 FITNESS Platform you will be exposed to User Submissions from a variety of sources and that we are not responsible for the accuracy, usefulness, reliability, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, defamatory, indecent, or objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. We are not responsible for any loss, theft, or damage of any kind to any User Submissions. Further, you agree that we may freely disclose your User Submission to any third party absent any obligation of confidence on the part of the recipient.
Links to Third-Party Sites.
We may provide links from the 321 FITNESS Platform to third-party websites (“Third-Party Sites”), including, but not limited to, links to websites owned by third parties who manage the sales of 321 FITNESS-branded merchandise and class bookings for 321 FITNESS. If you use these links, you will leave the 321 FITNESS Platform. 321 FITNESS provides these links to you as a convenience, and we do not verify, make any representations, or take responsibility for the Third-Party Sites, including the truthfulness, accuracy, quality, or completeness of the content, services, links displayed, or other activities conducted on or through the Third-Party Sites. Therefore, unless specifically stated on the 321 FITNESS Platform, we do not endorse or make any representations about Third-Party Sites or any information, material, or results that may be obtained through the use of Third-Party Sites. In addition, certain areas of the 321 FITNESS Platform may allow you to interact or conduct transactions with Third-Party Sites. If you decide to access any of the Third-Party Sites linked to by the 321 FITNESS Platform, you do this entirely at your own risk, and you must follow the privacy policies and the terms and conditions for those Third-Party Sites.
YOU AGREE THAT TA WILL NOT, UNDER ANY CIRCUMSTANCES, BE RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY GOODS, SERVICES, INFORMATION, RESOURCES, OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITE, FOR ANY THIRD-PARTY DEALINGS OR COMMUNICATIONS, OR FOR ANY HARM RELATED TO ANY GOODS, SERVICES, INFORMATION, RESOURCES, OR CONTENT AVAILABLE ON OR THROUGH ANY THIRD-PARTY SITE, OR FOR ANY DAMAGES OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR USE OR RELIANCE ON THE CONTENT OR BUSINESS PRACTICES OF ANY THIRD PARTY.
Orders and Payments.
You agree to pay any fees applicable to your use of the 321 FITNESS Platform, including but not limited to fees and charges applicable to your purchases. We may suspend or terminate your account and/or access to the 321 FITNESS Platform and/or Materials if your offered payment method (e.g., credit card) cannot be processed. By providing a payment method, you expressly authorize us and/or our third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto, all of which depend on the services you utilize and the products you purchase. You agree that we may charge any unpaid amounts to your provided payment method and/or send you a bill for such unpaid fees.
You may be permitted to purchase 321 FITNESS-branded products through the 321 FITNESS Platform storefront (“Products”). To do so, you must supply certain information relevant to your transaction, including, without limitation, your credit card number, the expiration date of your credit card, the name on your credit card, and/or your billing address. Once you have submitted your payment information, we or our third party fulfillment partner will authorize the payment and send you a confirmation email.
Subject to fulfilling your order of a 321 FITNESS-branded product when that order is made, all descriptions, images, features, specifications and prices of the Products are subject to change at any time without notice. The inclusion of any Product on the 321 FITNESS Platform does not imply or warrant that such Product will be available. We reserve the right, with or without prior notice, to do any one or more of the following for any reason: (i) limit the available quantity of or discontinue any Product; (ii) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (iii) bar you from making or completing any or all transactions; and (iv) refuse to provide you with any Product.
Products will be shipped in accordance with the shipping method you select when placing the order. All orders will be processed and fulfilled by our third party fulfillment partner. You acknowledge that any delivery dates we may provide are non-binding estimates only and that you have no claim against 321 FITNESS for delays or early deliveries. We reserve the right to make deliveries in installments.
You should inspect your package to ensure the contents arrive undamaged. If you are not home when a delivery arrives, the delivery person may leave the package for you at your door.
321 FITNESS is not responsible for:
- Items delivered to incorrect addresses supplied by you or the recipient of the product.
- Delays resulting from inclement weather, natural disaster or other unforeseen circumstances.
- Delivery issues arising from the recipient not being present at the time of delivery at the address supplied by you or recipient.
- Decreased product quality due to an incorrect delivery address supplied by the you or the recipient, or a re-route requested by the you or the recipient.
- Product quality problems caused by improper handling by you or the recipient.
All claims for damaged or missing shipments must be made via email. Claims may be made by email to firstname.lastname@example.org
By using the 321 FITNESS Platform and/or the Materials, you consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the 321 FITNESS Platform and Materials. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
The trademarks, service marks, and logos of 321 FITNESS (“Our Trademarks”) used and displayed on various parts of the 321 FITNESS Platform are registered and unregistered trademarks or service marks of 321 FITNESS. Other company, product, and service names located on the 321 FITNESS Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks” and, collectively with Our Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of Our Trademarks inures to our benefit.
Unless otherwise specified in this Agreement, all Materials, including the arrangement of them on the 321 FITNESS Platform are our sole property, or the property of our suppliers and licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of the copyright owner.
Reporting Violations of Your Copyrights or other Intellectual Property Rights.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under the U.S. copyright law. If you believe in good faith that materials hosted by 321 FITNESS infringe your copyright, you, or your agent may send to 321 FITNESS a notice requesting that the material be removed or access to it be blocked.
If you believe your copyright or other intellectual property right is being infringed by a user of the 321 FITNESS Platform, please provide written notice to our agent for notice of claims of infringement:
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
- Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner’s agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Unless the notice pertains to copyright or other intellectual property infringement, the agent will be unable to address the listed concern.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our agent with a written counter-notification that includes the following information:
- Your physical or electronic signature;
- Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
We reserve the right, in our sole discretion, to terminate the account or access of any user of the 321 FITNESS Platform who is the subject of repeated DMCA or other infringement notifications. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there can be penalties for false claims under the DMCA.
Disclaimer of Warranties.
Your use of the 321 FITNESS Platform is at your own risk. The Materials may include inaccuracies or typographical or other errors. 321 FITNESS does not warrant the accuracy or timeliness of the Materials contained on the 321 FITNESS Platform and we have no liability for any errors or omissions in the Materials, whether provided by 321 FITNESS, our licensors or suppliers, or other users.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 321 FITNESS, FOR ITSELF AND ITS LICENSORS, MAKES NO EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH THE SITES, THE SERVICES, THE MOBILE APPLICATIONS, OR ANY MATERIALS RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR CONTENT CONTAINED OR PRESENTED ON THE TA PLATFORM, INCLUDING WITHOUT LIMITATION THE MATERIALS. UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE 321 FITNESS PLATFORM, MATERIALS AND ANY OTHER INFORMATION OR CONTENT CONTAINED OR PRESENTED ON OR THROUGH THE 321 FITNESS PLATFORM, IS PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” AND “WHERE-IS” BASIS WITH NO WARRANTY WHATSOEVER, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AS WELL AS ANY WARRANTIES IMPLIED FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE OR USAGE OF TRADE. TA DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER.
WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE QUALITY OR SUITABILITY OF ANY PRODUCTS, SERVICES OR BUSINESSES THAT MAY BE DISPLAYED ON OR THROUGH THE TA PLATFORM, OR AS TO THE CONDUCT OF USERS OF THE 321 FITNESS PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE 321 FITNESS PLATFORM AND WITH OTHER PERSONS OR ENTITIES WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE TA PLATFORM, PARTICULARLY IF YOU DECIDE MEET OR CONDUCT BUSINESS OFFLINE OR IN PERSON.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER TA NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS OR SPONSORS ARE RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO (i) THE USE OF OR INABILITY TO USE THE 321 FITNESS PLATFORM OR MATERIALS; (ii) ANY CONTENT CONTAINED ON OR ACCESSED THROUGH THE 321 FITNESS PLATFORM; (iii) STATEMENTS OR CONDUCT POSTED OR MADE PUBLICLY AVAILABLE ON THE 321 FITNESS PLATFORM; (iv) ANY PRODUCT OR SERVICE PURCHASED OR OBTAINED THROUGH THE TA PLATFORM; (v) ANY ACTION TAKEN IN RESPONSE TO OR AS A RESULT OF ANY INFORMATION AVAILABLE ON THE TA PLATFORM OR IN THE MATERIALS; (vi) ANY DAMAGE CAUSED BY LOSS OF ACCESS TO, DELETION OF, FAILURE TO STORE, FAILURE TO BACK UP, OR ALTERATION OF ANY CONTENT OR MATERIALS ON OR ACCESSIBLE THROUGH THE 321 FITNESS PLATFORM, OR (vii) ANY OTHER MATTER RELATING TO THE 321 FITNESS PLATFORM. IN NO EVENT SHALL 321 FITNESS’ TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, STATUTORY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR USING ANY THE T321 FITNESS PLATFORM AND MATERIALS.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE T321 FITNESS PLATFORM, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE 321 FITNESS PLATFORM. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE TA PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE 321 FITNESS PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE 321 FITNESS PLATFORM, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON.
Professional Advice Disclaimer.
THE 321 FITNESS PLATFORM AND MATERIALS OFFER HEALTH, FITNESS AND NUTRITIONAL INFORMATION AND ARE DESIGNED FOR EDUCATIONAL PURPOSES ONLY. YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTH-CARE PROFESSIONAL. DO NOT DISREGARD, AVOID OR DELAY OBTAINING MEDICAL OR HEALTH RELATED ADVICE FROM YOUR HEALTH-CARE PROFESSIONAL BECAUSE OF SOMETHING YOU MAY HAVE READ ON THE TA PLATFORM OR IN THE MATERIALS. THE USE OF ANY SUCH INFORMATION IS SOLELY AT YOUR OWN RISK.
NOTHING STATED OR POSTED ON OR AVAILABLE VIA THE 321 FITNESS PLATFORM IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR COUNSELING CARE. FOR PURPOSES OF THIS AGREEMENT, THE PRACTICE OF MEDICINE AND COUNSELING INCLUDES, WITHOUT LIMITATION, PSYCHIATRY, PSYCHOLOGY, PSYCHOTHERAPY, OR PROVIDING HEALTH CARE TREATMENT, INSTRUCTIONS, DIAGNOSIS, PROGNOSIS OR ADVICE.
THE 321 FITNESS PLATFORM AND MATERIALS ARE CONTINUALLY UNDER DEVELOPMENT AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TA MAKES NO WARRANTY OF ANY KIND, IMPLIED OR EXPRESS, AS TO THEIR ACCURACY, COMPLETENESS OR APPROPRIATENESS FOR ANY PURPOSE. IN THAT REGARD, DEVELOPMENTS IN MEDICAL RESEARCH MAY IMPACT THE HEALTH, FITNESS AND NUTRITIONAL ADVICE THAT APPEARS HERE. NO ASSURANCE CAN BE GIVEN THAT THE ADVICE CONTAINED OR OBTAINED ON OR THROUGH YOUR USE OF THE 321 FITNESS PLATFORM WILL ALWAYS INCLUDE THE MOST RECENT FINDINGS OR DEVELOPMENTS.
Fitness Class Participation Waiver
You acknowledge that participation in fitness classes involves strength, flexibility, aerobic, cardio and other exercises, including the use of equipment, all of which can be potentially hazardous activities. You accept full responsibility over the location where you engage in fitness classes accessible via the 321 FITNESS Platform (“Fitness Classes”), you acknowledge that 321 FITNESS has no control over the location that you choose, and that the location of participation in fitness activities involves additional risks, including, but not limited to, those caused by terrain, facilities, temperature, weather, environment, vehicular traffic, lack of hydration and actions of other people.
By choosing to engage in Fitness Classes, you affirm that either (i) all of the following statements are true: (A) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (B) you have never felt chest pain when engaging in physical activity; (C) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (D) you have never lost your balance because of dizziness and you have never lost consciousness; (E) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (F) your physician is not currently prescribing drugs for your blood pressure or heart condition; (G) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (H) you do not know of any other reason you should not exercise; or (ii) your physician has specifically approved of your participation in the Fitness Classes. If applicable, you further affirm that (i) you are not pregnant, breastfeeding or lactating; or (ii) your physician has specifically approved your participation in the Fitness Classes. We reserve the right to bar you from participating in Fitness Classes if we determine that you have certain medical conditions or that the representations set forth above are untrue in any respect.
By participating in our Fitness Classes, you: (i) acknowledge and agree that you are voluntarily participating such Fitness Classes; (ii) hereby assume and accept any and all risks of injury, physical harm, or death; (iii) acknowledge and represent that you are physically sound and do not suffer from any illness, impairment, disease or other condition that would prevent you from participating in the Fitness Classes, performing any exercises, or using any equipment; and (iv) knowingly and voluntarily, on behalf of yourself and your heirs and assigns, forever waive, release, discharge and hold harmless TA and its subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, representatives, and each of their respective successors and assigns, individually and collectively, from any and all liability, damages, losses, suits, demands, causes of action (including, without limitation, negligence) or other claims of any nature whatsoever, including, without limitation, any losses for property damage, personal injury, or death, arising out of or relating in any way to your participation in the Fitness Classes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
You agree to indemnify, defend, and hold 321 FITNESS and its subsidiaries, affiliates, officers, directors, agents, co-branders or other partners, employees, and representatives harmless from and against any and all claims, damages, losses, costs or expenses (including reasonable attorneys’ fees and disbursements) which arise directly or indirectly out of or from (i) your breach of this Agreement, (ii) any allegation that any User Submissions or other materials that you submit to 321 FITNESS or post on any forums (e.g., support groups, chat rooms) infringe or otherwise violate the copyright, trade secret, trademark or other intellectual property rights of a third party, and (iii) your access or use of the 321 FITNESS Platform. This Section shall survive in the event this Agreement is terminated for any reason.
321 FITNESS controls and operates the 321 FITNESS Platform from the United States of America and makes no representation or warranty that the 321 FITNESS Platform or Materials are appropriate or available for use in locations outside the United States. Those who choose to access the 321 FITNESS Platform and/or Materials from other locations do so on their own initiative and at their own risk, and are responsible for compliance with local laws, if and to the extent applicable. 321 FITNESS reserves the right, at any time in our sole discretion, to limit the availability and accessibility of the 321 FITNESS Platform and/or Materials to any person, geographic area, or jurisdiction we so desire, and/or to limit the quantities of any Services or products that we provide.
To the maximum extent permitted by applicable law, any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable and/or subject to copyright, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Where the foregoing assignment is prohibited by law, you hereby grant us an exclusive, transferable, worldwide, royalty-free, fully paid up license (including the right to sublicense) to use and exploit all Feedback as we may determine in our sole discretion. You understand and agree, however, that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
This Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that 321 FITNESS, in its sole discretion, may terminate your account, or use of the 321 FITNESS Platform or Materials (in whole or in part), and remove and discard any content from the 321 FITNESS Platform, at any time and for any reason. You agree that any actions taken under this Section may be effective without prior notice to you. In the event that 321 FITNESS exercises this right to terminate for convenience rather than as a result of your violation of the terms of Agreement, 321 FITNESS will refund on a pro rata basis any unused portion of your subscription price for the time period of any unused subscription.
Dispute Resolution and Arbitration; Class Action Waiver.
Please read the following Dispute Resolution and Arbitration; Class Action Waiver provision (this “Provision”) carefully. It affects your rights.
Please read this Provision carefully. It provides that all Disputes (as defined below) between you and 321 FITNESS arising out of this Agreement shall be resolved by binding arbitration. Arbitration is a form of private dispute resolution and replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this Agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this Agreement and can award the same damages and relief as a court (including attorney’s fees).
For purposes of this Provision, “321 FITNESS” means 321 Fitness, LTD. and its parents, subsidiaries, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and 321 FITNESS regarding, arising out of or relating to any aspect of your relationship with 321 FITNESS, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as 321 FITNESS’ licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND 321 FITNESS EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give 321 FITNESS an opportunity to resolve the Dispute. You must commence this process by mailing a written notification to 321 Fitness LTD.#202-2245 West Broadway Vancouver BC Canada V6K2E4 Attn Ramona Braganza . That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If TA does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or 321 FITNESS may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to 321 FITNESS, LTD#202-2245 West Broadway Vancouver BC Canada V6K2E4 . Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with 321 FITNESS through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with 321 FITNESS. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or 321 FITNESS may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced or maintained or heard as a class arbitration or a consolidated or representative action or arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action or representative action procedures or rules apply to the arbitration.
Because the 321 FITNESS Platform and this Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or 321 FITNESS may initiate arbitration in either Los Angeles, California or the federal judicial district that includes your billing address. However, if 321 FITNESS initiates the arbitration in Los Angeles, you shall have the right to have the arbitration transferred to the AAA or JAMS office within the federal judicial district that includes your billing address.
Payment of Arbitration Fees and Costs – 321 FITNESS will pay all arbitration filing fees and AAA or JAMS hearing fees and any arbitrator’s hearing fees, costs and expenses upon your written request to the arbitrator given at or before the first evidentiary hearing in the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with 321 FITNESS as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and 321 FITNESS specifically agree to do so in writing following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Except to the extent that representative claims under California’s Private Attorney General Act (“PAGA”) are excluded from this Agreement (if PAGA is applicable), neither you, nor any other user of the 321 FITNESS Platform can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
No Judge Or Jury In Arbitration
Arbitration does not involve a judge or jury. You understand and agree that by entering into this Agreement you and 321 FITNESS are each giving up the right to a jury trial or a trial before a judge in a public court. In the absence of this Provision, you and 321 FITNESS might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, those rights are waived. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived.
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable, and the Dispute will be decided by a court.
This Provision shall survive the termination of your service, subscription or agreement with 321 FITNESS or its affiliates. Notwithstanding any provision in this Agreement to the contrary, we agree that if 321 FITNESS makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require 321 FITNESS to adhere to the present language in this Provision as of the day you entered into this Agreement if a dispute between us arises.
General Information And Choice Of Law And Venue.
As to all Disputes, whether in arbitration or in court, the Federal Arbitration Act, California state law, and applicable U.S. federal law, without regard to their choice of law or conflicts of law provisions, will govern this Agreement. Foreign laws do not apply. The United Nations on Contracts for the International Sale of Goods and any laws based on the Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement. Except for Disputes subject to arbitration as described above, any disputes relating to this Agreement, the TA Platform, or the Materials will be heard in the federal or state courts located in Los Angeles in California. If any terms of this Agreement are found to be inconsistent with applicable law, then such terms shall be interpreted to reflect the intentions of the parties, and no other terms will be modified. Our failure to enforce any provisions of this Agreement is not a waiver of such terms. The section titles in this Agreement are for convenience purposes only and have no legal or contractual effect. This Agreement is not assignable, transferable or sub-licensable by you except with our prior written consent. However, we may assign this Agreement to any third party whom we choose without your consent. No waiver by 321 FITNESS of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default. This Agreement is the entire agreement between you and 321 FITNESS and supersedes all prior or contemporaneous oral or written negotiations, discussions or agreements between you and 321 FITNESS about the 321 FITNESS Platform and/or Materials. The Arbitration Agreement and Class Action Waiver, and the proprietary rights, disclaimer of warranties, representations made by you, indemnities, limitations of liability and general provisions shall survive any termination of this Agreement.
California Consumer Notice.
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: The 321 FITNESS Platform is provided by 321 FITNESS, LTD. #202-2245 West Broadway Vancouver BC Canada V6K2E4 you have a question or complaint regarding the 321 FITNESS Platform, please contact Customer Service at email@example.com. You may also contact us by writing 321 FITNESS, LTD.#202-2245 West Broadway Vancouver BC Canada V6K2E4 Attn.: Customer Service. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Boulevard, Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
If you have any questions about this Agreement or otherwise need to contact us for any reason, you can reach us at 321 FITNESS, LTD. #202-2245 West Broadway Vancouver BC Canada V6K2E4 Attn.: Customer Service, or by email at firstname.lastname@example.org