FITTEN User Agreement
IMPORTANT: READ THIS USER AGREEMENT (THE "AGREEMENT") CAREFULLY BEFORE PROCEEDING.
THIS AGREEMENT IS BETWEEN YOU AND FITTEN FOR THE FITTEN SERVICES SELECTED BY YOU AS PART OF THE ENROLLMENT PROCESS (THE " FITTEN SERVICES").
BY COMPLETING THE ENROLLMENT PROCESS OR CLICKING THE "I ACCEPT" OR "I AGREE" BUTTON ON THE FITTEN ONLINE PORTAL, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT WANT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PROMPTLY LOG OFF THE PORTAL.
For purposes of this Agreement, the words "we", "us", "our" and " FITTEN " affiliates and any agent, including sales agents, independent contractors or assignees that FITTEN may, in its sole discretion, involve in the sale or provision of the FITTEN Services. The words "You", "Your", or "User" refer to the person or entity identified as the user during the enrollment process. “Training Facilitator”, if applicable, refers to the entity or person that supported your enrollment into the FITTEN services. “Trainee”, if applicable, refers to other persons in a Training Facilitator’s program.
1. Accuracy of Information. You must be at least 13 years of age to use the FITTEN services. You hereby represent and warrant that all enrollment information, entries, posts and responses, including without limitation, Your name and contact information is Yours, is truthful and accurate.
2. FITTEN Services. FITTEN provides Users and, if applicable, User’s Training Facilitator, and Trainees with access to an online portal to assist players, students, coaches, schools, athletic programs, trainers and Trainees in developing and maintaining a system to track, support, report and maintain a consistent physical training or exercise program, and share information and videos.
3. User Code of Conduct. You shall not use the FITTEN services, online portal or content in violation of this agreement and or applicable laws.
a. You represent that you own or have the rights to use the content you post or share on this site, and that it does not violate any privacy rights, publicity rights, contractual rights, or intellectual property rights of any other person, or entity, and that you agree and acknowledge to the sharing of this information with others to include, but not limited to your Training Facilitator and other Trainees;
b. You are strictly prohibited from using the FITTEN services to communicate, post or share information that is patently offensive, vulgar, contains adult content to include nudity, promotes hatred, bullying, bigotry, racism, against any person or a person of a protected class based on race, creed, color or sexual orientation, or offensive subject matter or contains a reference or link to a third party site that may contain such material.
c. You shall not post information, videos, material or links to information that is false or misleading or promotes any illegal or criminal activity to include gambling, drug dealing, child pornography, fraud, stalking or violating any other user’s privacy or intellectual property or that is abuse or threatening, obscene, defamatory, or libelous or any content that is pirated or otherwise in violation of the owner’s intellectual property rights.
d. You shall not use the FITTEN service to solicit other Users information for purposes other than for the FITTEN services.
e. You agree and acknowledge that FITTEN can and will remove any content you post especially any that does or is alleged to violate or infringe the copyright of a third party and You agree to immediately notify FITTEN if you know or suspect that another person has posted any material that violates this Agreement to include the copyright of third party.
4. Fees. If You are being enrolled under a Training Facilitator’s program then they have agreed to pay for your initial enrollment in the FITTEN Services. If you are not being enrolled under a Training Facilitator’s program, then you agree to pay for the FITTEN service. You agree to also pay the fees for any additional services that you may select in addition to the Training Facilitator’s program. If your Training Facilitator’s program is terminated, then you may be given the opportunity to continue the FITTEN Services on your own.
Use of Services. Your right to use the FITTEN services is subject to your adherence to all provisions of this Agreement. You acknowledge and understand that physical training and exercise programs involve inherent risks, including, without limitation, risks related to physical harm and injury, to include death. It is Your sole responsibility to ensure that You are physically able to perform, to include medical clearance by a licensed physician, the training and exercises that you designed and/or developed on your own or were provided by your Training Facilitator. You agree and acknowledge that FITTEN is NOT designing or building a program for you, rather is providing a service to help you track and report your physical training or exercise program as designed and developed by You to your Training Facilitator and other Trainees, if applicable.
a. Your use of the FITTEN services, online portal, posts, reports and other information may only be used for the stated purposes in this Agreement for Your personal use or in conjunction with your Training Facilitator in accordance with all applicable laws. You shall not use the FITTEN services for any commercial activity, marketing or method solicit other users to buy or review any other services or products. You shall take reasonable measure to protect your online portal access code and information and shall limit access to the FITTEN portal account to only You and/or Your Training Facilitator, and Trainee, if desired. You shall be solely responsible for notifying FITTEN when you are no longer using the FITTEN service in conjunction with Your Training Facilitator and You must disable their access to your information, reports, posts and other information r. You shall not copy, disclose, modify, decompile, disassemble, alter, tamper, translate or reverse engineer any aspects of the FITTEN services or online portal. You shall notify FITTEN immediately if you know, suspect or have reason to know that You or anyone you have granted access to the FITTEN services have violated any provision of this Agreement and if you suspect that someone has gained unauthorized access to your account and information. In such a case, You shall take immediate action to change your online access code and information.
b. You assume full responsibility to backup and/or otherwise protect your data against loss, damage or destruction prior to and during all phases of the FITTEN services, and to take appropriate measures to respond to any potential adverse impact of the systems or disruption of service. You agree that FITTEN will not be liable for any damages attributable to the FITTEN Services, except and to the extent caused by FITTEN 's gross negligence or willful misconduct.
5. Term and Termination.
a. This Agreement will commence immediately upon Your clicking on the "I Accept" or "I Agree" button and shall continue until otherwise terminated. This Agreement may be terminated at any time: (i) by FITTEN immediately if You violate any provision of the Code of Conduct or Use of Services or for any reason FITTEN deems; and, (ii) by You if you are no longer participating in the Training Faciltiator’s program
b. If any payment is not received when due, FITTEN reserves the right to disable Your access to the FITTEN portal and/or other services.
6. Proprietary Rights. You acknowledge and agree that, as between FITTEN and You, all right, title and interest in and to the FITTEN portal and its contents, any part thereof, and other FITTEN proprietary processes and solutions included in the services under this agreement, all patents, trademarks copyrights, trade secrets and all other intellectual property rights therein and thereto, and all copies thereof, in whatever form, including any written documentation shall at all times be and remain solely with FITTEN. FITTEN does not claim ownership in the information, text, posts, images, videos, links, photos or other items User posts on the FITTEN online portal or their account and YOU are solely responsible for any 3rd party content YOU post or generate or which You are featured in or visible.
7. Limitation of Liability; Disclaimer of Warranties.
a. NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE CONTRARY, FITTEN CUMULATIVE AGGREGATE LIABILITY FOR ANY LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED BY YOU AND, IN ANY EVENT, SHALL NOT EXCEED THE LESSER OF (I) THE AMOUNT OF FEES PAID BY YOU OR YOUR TRAINING FACILITATOR TO FITTEN FOR YOUR INDIVIDUAL SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THAT THE LIABILITY ARISES, OR (II) $500.00.
b. IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST REVENUES, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY OR ANY ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
c. THIS AGREEMENT IS A SERVICE AGREEMENT, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FITTEN DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES REGARDING QUALITY, SUITABILITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) OF ANY SERVICES OR ANY GOODS PROVIDED INCIDENTAL TO THE SERVICES PROVIDED UNDER THIS AGREEMENT.
d. FITTEN DOES NOT WARRANT THAT THE SITE WILL OPERATE ERROR FREE OR THAT ITS SERVERS ARE FREE OF COMPUTER VIRUSES AND/OR OTHER HARMFUL MATERIALS. NOR DOES IT WARRANT THAT THE CONTENT POSTED BY USERS IS ACCURATE AND TRUTHFUL
e. You acknowledge and agree that the provisions and limitations of this section are essential to this Agreement and that absent them, FITTEN would not have entered into this Agreement.
8. Indemnification. Each party shall indemnify and hold harmless the other party and its Affiliates and their respective officers, directors, employees, partners, agents, successors and assigns from, and shall defend the other against, any costs, liabilities, damages or expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim (i) that the party has infringed upon the intellectual property rights of another and (ii) attributable to breaches of the other party’s express representations and warranties contained in this Agreement.
9. Communications. You agree to accept communications from FITTEN via email, text or other electronic form.
a. All notices hereunder shall be in writing and shall be deemed given when personally delivered, or when sent by facsimile transmission with receipt confirmed, one day after being sent by a reputable overnight courier, or three business days after being mailed by certified mail, return receipt requested, in each case directed: (i) if to User, to the address shown during the enrollment process and/or by way of posting on the FITTEN online portal; (ii) if to FITTEN: 2270 Beaver Road, Landover, MD 20785, Attention: Legal Department; or (iii) to such other addresses for each party as specified by such party in a notice given to the other party.
b. The parties agree that they are acting hereunder as independent contractors and that nothing contained in this Agreement shall be deemed or construed by the parties hereto, or any third party, to create the relationship of agency, partnership or joint venture between the parties. No party to this Agreement has, and shall not hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other parties.
c. Neither party may assign, delegate nor otherwise transfer the rights or obligations associated with this Agreement, in whole or in part, without the prior written consent of the other party; provided however, no written consent shall be required to assign this Agreement to any parent or the wholly owned subsidiary of the party. Furthermore, no written consent shall be required for FITTEN to assign this Agreement to its successor as a result of a merger, acquisition, sale, transfer or other disposition of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
d. FITTEN may subcontract with one or more affiliates or third parties to provide any service required to be provided by FITTEN hereunder, provided that no such use of subcontractors shall relieve FITTEN of its obligations under this Agreement.
e. This Agreement constitutes the complete and exclusive statement of the agreement between the parties, and supersedes and merges all prior proposals and all other agreements, whether oral or written, between the parties relating to the subject matter hereof. Any documents of User referring to such party's terms and conditions, such as vendor manuals, codes of conduct, requests for proposals, purchase orders or invoices that are not expressly contained or incorporated herein, or are contrary to the terms and conditions contained herein, shall not be binding upon FITTEN. No change, modification, or waiver of any term or condition of the Agreement shall be valid unless in writing signed by each party. Notwithstanding, FITTEN may update this Agreement in the event that the laws or NCAA rules and regulations require, or other applicable standards are changed or updated. For purposes of this section, an electronic or "click-wrap" notice intended to modify or amend this Agreement and which you click "I Accept" or "I Agree" or otherwise accept through an electronic process, shall constitute a writing as required herein. The waiver or failure of either party to exercise any right provided for in this Agreement shall not be deemed a waiver of any further or future right under this Agreement.
f. If any of the terms, or portions thereof, of this Agreement are invalid or unenforceable under any applicable statute or rule of law, the court shall reform the Agreement to include an enforceable term as close to the intent of the original term as possible; all other terms shall remain unchanged.
g. This Agreement shall be construed and governed in accordance with the laws of the State of Maryland, excluding its conflict of law provisions. Any litigation arising out of or related to this Agreement shall be commenced and maintained exclusively in the state or federal courts sitting in Maryland.
h. Neither party will be liable to the other under this Agreement if delayed or prevented from performance by causes beyond its control including, but not limited to, fires, floods, strikes, acts of God, war, insurrection, governmental restrictions, or other causes of a like or different nature beyond the control of such party.
i. FITTEN and User irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to this agreement.
Nothing herein expressed or implied is intended to or shall be construed to confer upon or give any person or entity, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies under or by reason of this Agreement.