Revised January 5, 2017
Find My Fitness
Terms and Conditions of Use
These Terms and Conditions of Use (the "Terms") govern your access to and use of all Find My Fitness, LLC ("Find My Fitness") websites and applications that link to or reference these Terms (the "Site"). By accessing or using the Site, you are agreeing to these Terms and concluding a legally binding contract with Find My Fitness. Do not access or use the Site if you are unwilling or unable to be bound by the Terms.
I.Definitions A. Parties
"You" and "your" refer to you, as a user of the Site. A "User" is someone who accesses, browses, crawls, scrapes, posts on, or in any way uses the Site, including paying subscribers to the Site (“Business Account Users”). "We", "us", and "our" refer to Find My Fitness, LLC, a California limited liability company.
"Content" means text, images, photos, audio, video, location data, and all other forms of data or communication. "Your Content" means Content that you submit or transmit to, through, or in connection with the Site, such as ratings, reviews, messages, and information that you publicly display or displayed in your account profile. "User Content" means Content that users submit or transmit to, through, or in connection with the Site. "Find My Fitness Content" means Content that we create and make available in connection with the Site. "Third Party Content" means Content that originates from parties other than Find My Fitness or its users, which is made available in connection with the Site. "Site Content" means all of the Content that is made available in connection with the Site, including Your Content, User Content, Third Party Content, and Find My Fitness Content.
II. Changes to the Terms and Conditions of Use
We may modify the Terms from time to time. When changes are made, we will notify you by making the revised version available on this webpage, and will indicate at the top of this page the date that revisions were last made. You should revisit these Terms on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms. You understand and agree that your
continued access to or use of the Site after any posted modification to the Terms indicates your acceptance of the modification.
III.Using the Site A. Eligibility
To access or use the Site, you must be 18 years or older and have the requisite power and authority to enter into these Terms. You may not access or use the Site if you are a competitor of ours or if we have previously banned you from the Site or closed your account.
B. Permission to Use the Site
We grant you permission to use the Site subject to the restrictions in these Terms. Your use of the Site is at your own risk, including the risk that you might be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate.
C. Site Availability
The Site may be modified, updated, interrupted, suspended or discontinued at any time without notice or liability.
D. User Accounts
Business Account Users will be charged a monthly fee for use of the Site. During the promotional period, the initial Business Account User fee will be a one time fee of $199 for the first six months, paid on the date of registration. The promotional period is from January 1, 2017 to June 30, 2017. Thereafter, the monthly fee for Business Account Users will be $199/month. Business Users who register for an account after August 31, 2016 will pay $199/month. Payments will be processed by a third party service provider, currently Braintree (www.braintreepayments.com). Find My Fitness reserves the right to change the price or modify the payment structure at anytime without further notice. You will have 48 hours after your billing date to cancel your Business Account User access in exchange for a full refund. You can reach us at firstname.lastname@example.org for billing questions and refund requests.
A. Responsibility for Your Content
You alone are responsible for Your Content, and once published, it cannot always be withdrawn. You assume all risks associated with Your Content, including anyone's reliance on its quality, accuracy, or reliability, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use and authorize the use of Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by Find My Fitness.
You may expose yourself to liability if, for example, Your Content contains material that is false, intentionally misleading, or defamatory; violates any third- party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation, including false advertising.
B. Our Right to Use Your Content
We may use Your Content in a number of different ways, including publicly displaying it, reformatting it, incorporating it into advertisements and other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms ("Other Media"). As such, you hereby irrevocably grant us world-wide, non- exclusive, royalty-free, sublicensable, transferable rights to use Your Content for any purpose. You also irrevocably grant the users of the Site and any Other Media the right to access Your Content in connection with their use of the Site and any Other Media. Finally, you irrevocably waive, and cause to be waived, against Find My Fitness and its users any claims and assertions of moral rights or attribution with respect to Your Content. By "use" we mean use, copy, publicly
perform or display, distribute, modify, translate, and create derivative works of Your Content.
As between you and Find My Fitness, you own Your Content. We own the Find My Fitness Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding Your Content, User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world ("IP Rights") associated with the Find My Fitness Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the Find My Fitness Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the Find My Fitness Content are retained by us.
Find My Fitness and its licensees may publicly display advertisements and other information adjacent to or included with Your Content. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
E. Content Feeds
We may make some of the Site Content ("Feed Content") available via Rich Site Summary or other web feed ("Feeds"). You may access and use the Feeds in order to display Feed Content on your personal computer, website, or blog ("Your Site"), provided that (i) your use of the Feeds is for personal, non- commercial purposes only, (ii) your display of the Feed Content links back to the relevant pages on Find My Fitness's websites, and attributes Find My Fitness as the source of the Feed Content, (iii) your use or display of the Feed Content does not suggest that Find My Fitness promotes or endorses any third party causes, ideas, websites, products or services, including Your Site, (iv) you do not redistribute the Feed Content, and (v) your use of the Feeds does not overburden Find My Fitness's systems. Find My Fitness reserves all rights in the Feed Content and may terminate the Feeds at any time. Please contact us directly to inquire about other possible uses of the Feeds.
User Content does not necessarily reflect the opinion of Find My Fitness. We reserve the right to remove, screen, edit, or reinstate User Content from time to
time at our sole discretion and without notice to you. For example, we may remove a review if we believe it violates our Content Guidelines (below). We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
We are under no obligation to enforce the Terms on your behalf against another User. While we encourage you to let us know if you believe another User has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.
A.You agree not to, and will not assist, encourage, or enable others to use the Site to:
1.Violate our Content Guidelines (below), for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;
2.Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
3.Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
4.Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a Business Account and as expressly permitted by Find My Fitness;
5.Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Site's search results or any third party website;
6.Solicit personal information from minors, or submit or transmit pornography;
7.Violate any applicable law.
B.You also agree not to, and will not assist, encourage, or enable others
1.Violate the Terms;
2.Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site or Site Content (other than Your Content), except as expressly authorized by Find My Fitness;
3.Use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index any portion of the Site or any Site Content;
4.Reverse engineer any portion of the Site;
5.Remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Site or on any materials printed or copied from the Site;
6.Record, process, or mine information about other Users;
7.Access, retrieve or index any portion of the Site for purposes of constructing or populating a searchable database of business reviews;
8.Reformat or frame any portion of the Site;
9.Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on Find My Fitness's technology infrastructure or otherwise make excessive traffic demands of the Site;
10.Attempt to gain unauthorized access to the Site, user accounts, computer systems or networks connected to the Site through hacking, password mining or any other means;
11.Use the Site or any Site Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses");
12.Use any device, software or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site;
13.Use the Site to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Site or Site Content; or
14.Remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing 30 days' prior written notice to us, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
VI. Guidelines and Policies
A. Content Guidelines
Find My Fitness allows users to contribute a variety of different kinds of content, which may include reviews, photos, events, votes, tips, private messages, and more. You represent that you have read and understood the following Content Guidelines:
1.Inappropriate content prohibited: No threats, harassment, lewdness, hate speech, or other displays of bigotry.
2.No conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn't write reviews of your own business or employer, your friends' or relatives' business, or businesses in your networking group.
3.Promotional content: Unless you are a Find My Fitness Business Account User or paid advertiser, do not post promotional content.
4.Relevance: Make sure your contributions are relevant and appropriate to the forum. For example, reviews aren't the place for rants about a business's employment practices, political ideologies, extraordinary circumstances, or other matters that don't address the core of the consumer experience of other Users.
5.Privacy: Don't publicize private information. Don't post close-up photos of other people without their permission, and don't post other people's full names unless you're referring to service providers who are commonly identified by their full names.
6.Intellectual property: Don't use content from other sites or users without permission. Please write your own reviews and take your own photos.
C. Copyright And Trademark Disputes
If you believe that your copyright or trademark is being infringed on the Site, please send us a written notice with the following information:
1. Identification of the copyrighted or trademarked work that you claim has been infringed;
2.Identification of the allegedly infringing content, and information reasonably sufficient to permit us to locate it on the Site (e.g., the URL for the web page on which the content appears);
3.A statement by you that you have a good faith belief that the use of the content identified in your notice in the manner complained of is not authorized by the copyright/trademark owner, its agent, or the law;
4.A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright/trademark owner or authorized to act on the owner's behalf; and
5.Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If you believe that your content should not have been removed for alleged copyright or trademark infringement, you may send us a written counter-notice with the following information:
1.Identification of the copyrighted or trademarked work that was removed, and the location on the Site where it would have been found prior to its removal;
2.A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification. For trademark disputes only: information reasonably sufficient to explain why you believe you are not infringing the trademarked work;
3.A statement that you consent either to the jurisdiction of (a) the Federal District Court for the judicial district in which your address is located if you live in the United States, or (b) any judicial district in which Find My Fitness is located if you live outside the United States. Please also include a statement that you will accept service of process from the person who sent the original infringement notice to us, or an agent of such person;
4.Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
We will respond to all such notices and attempt to comply with applicable law. We reserve the right to remove content alleged to be infringing without prior notice and at our sole discretion. We also reserve the right to terminate a User's account if the User is determined to be a repeat infringer.
VII. Find My Fitness Offers and Advertising
If you purchase an offer or deal from Find My Fitness, the terms of your purchase will be governed by the terms of the specific offer purchased. Please review the accompanying terms of any offer before you make each purchase since they may change from time to time. In the event of any conflict between the terms of a specific offer and these Terms, the terms of the specific offer will prevail.
Similarly, if you purchase advertising from Find My Fitness, the Find My Fitness advertising terms and conditions specified at the time of purchase will apply. In the event of any conflict between the Find My Fitness advertising terms and conditions and these Terms, the Find My Fitness advertising terms and conditions will prevail.
VIII. Suggestions and Improvements
By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non- exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback.
IX. Third Parties
The Site may include links to other websites or applications (each, a "Third Party Site"). We do not control or endorse any Third Party Site. You agree that we are not responsible for the availability or contents of such Third Party Sites. Your use of Third Party Sites is at your own risk.
Some of the services made available through the Site, including payment processing, are provided in connection with third parties and subject to additional terms which are incorporated herein by reference.
You agree to indemnify, defend, and hold Find My Fitness, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them (collectively, the "Find My Fitness Entities") harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to (i) your access to or use of the Site, (ii) your violation of the Terms, (iii) any products or services purchased, obtained, or offered by you in connection with the Site, or (iv) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. Find My Fitness reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Find My Fitness. Find My Fitness will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
XI. Disclaimers and Limitations of Liability
PLEASE READ THIS SECTION CAREFULLY SINCE IT LIMITS THE LIABILITY OF THE FIND MY FITNESS ENTITIES. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER
APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.
A.THE SITE IS MADE AVAILABLE TO YOU ON AN "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE" BASIS. YOUR USE OF THE SITE IS AT YOUR OWN DISCRETION AND RISK. THE FIND MY FITNESS ENTITIES MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, ACCURACY, OR RELIABILITY OF THE SITE, ITS SAFETY OR SECURITY, OR THE SITE CONTENT. ACCORDINGLY, THE FIND MY FITNESS ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM YOUR RELIANCE ON THE QUALITY, ACCURACY, OR RELIABILITY OF THE BUSINESS LISTINGS, RATINGS, OR REVIEWS.
B.THE FIND MY FITNESS ENTITIES MAKE NO CLAIMS OR PROMISES WITH RESPECT TO ANY THIRD PARTY, SUCH AS THE BUSINESSES LISTED ON THE SITE OR THE SITE'S USERS. ACCORDINGLY, THE FIND MY FITNESS ENTITIES ARE NOT LIABLE TO YOU FOR ANY LOSS OR DAMAGE THAT MIGHT ARISE FROM THEIR ACTIONS, INCLUDING, FOR EXAMPLE, IF ANOTHER USER MISUSES YOUR CONTENT OR IDENTITY, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH ONE OF THE BUSINESSES LISTED ON THE SITE. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES OFFERED BY THIRD PARTIES THROUGH THE SITE IS AT YOUR OWN DISCRETION AND RISK.
C.THE FIND MY FITNESS ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO THE PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE SITE, AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED TO YOU BY A REPRESENTATIVE OF ONE OF THE FIND MY FITNESS ENTITIES SHALL CREATE A REPRESENTATION OR WARRANTY.
D.YOUR SOLE AND EXCLUSIVE RIGHT AND REMEDY IN CASE OF DISSATISFACTION WITH THE SITE, RELATED SERVICES, OR ANY OTHER GRIEVANCE SHALL BE YOUR TERMINATION AND DISCONTINUATION OF ACCESS TO, OR USE OF THE SITE.
E.THE FIND MY FITNESS ENTITIES' MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE SITE OR THESE TERMS IS LIMITED TO THE GREATER OF (i)
THE AMOUNT PAID, IF ANY, BY YOU TO THE FIND MY FITNESS ENTITIES IN CONNECTION WITH THE SITE IN THE 3 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (ii) $100.
F.THE FIND MY FITNESS ENTITIES DISCLAIM LIABILITY FOR ANY (i) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (ii) LOSS OF PROFITS, (iii) BUSINESS
INTERRUPTION, (iv) REPUTATIONAL HARM, OR (v) LOSS OF INFORMATION OR DATA.
XII. Choice of Law and Venue
California law will govern these Terms, as well as any claim, cause of action or dispute that might arise between you and Find My Fitness (a "Claim"), without regard to conflict of law provisions. FOR ANY CLAIM BROUGHT BY EITHER PARTY, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA.
B.We may close your account, suspend your ability to use certain portions of the Site, and/or ban you altogether from the Site for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your account, the Site, Your Content, Site Content, or any other related information.
C.In the event of any termination, whether by you or by us, Sections 1, 4, 5, 9 - 13 of these Terms will continue in full force and effect, including our right to use Your Content as detailed in Section 4.
XIV. General Terms
A.We reserve the right to modify, update, or discontinue the Site at our sole discretion, at any time, for any or no reason, and without notice or liability.
B.We may provide you with notices, including those regarding changes to the Terms by email, regular mail or communications through the Site.
C.Except as otherwise stated in Section 9 above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
D.The Terms contain the entire agreement between you and us regarding the use of the Site, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms.
E.Any failure on Find My Fitness's part to exercise or enforce any right or provision of the Terms does not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
F.If any provision of the Terms is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms shall otherwise remain in full force and effect and enforceable.
G.The Terms are not assignable, transferable or sublicensable by you except with Find My Fitness's prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of the Terms shall be void.
H.The section titles in the Terms are for convenience only and have no legal or contractual effect.