This GymHit User Agreement (“Agreement”) is between GymHit, Inc. (“GymHit”) and the person or entity that has clicked on the “AGREE” box below (“you,” “your” or “yours”). This Agreement describes the terms under which you may use this website (“Website”). By clicking on the “AGREE” box, you are agreeing to comply with and be bound by all the terms of this Agreement.
YOU REPRESENT THAT YOU ARE A NATURAL PERSON OVER EIGHTEEN (18) YEARS OF AGE, OR THAT IF YOU ARE UNDER EIGHTEEN (18) YEARS OF AGE YOU ARE EITHER AN EMANCIPATED MINOR OR HAVE THE LEGAL PERMISSION OF YOUR PARENT OR GUARDIAN TO ENTER INTO THIS AGREEMENT. YOU FURTHER REPRESENT THAT YOU ARE A RESIDENT OF THE UNITED STATES, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT, AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
IF YOU ARE UNDER THIRTEEN (13) YEARS OF AGE, YOU MAY NOT ENTER INTO THIS AGREEMENT AND MAY NOT PROVIDE ANY INFORMATION TO GYMHIT.
GYMHIT’S PRIVACY STATEMENT AND DIGITAL MILLENNIUM COPYRIGHT ACT STATEMENT ARE BOTH INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
GYMHIT MAY CHANGE THIS AGREEMENT, GYMHIT’S PRIVACY STATEMENT AND DIGITAL MILLENNIUM COPYRIGHT ACT STATEMENT FROM TIME TO TIME AND POST THOSE CHANGES HERE. WHERE GYMHIT HAS DONE SO, YOU WILL BE REQUIRED TO REVIEW AND AGREE WITH SUCH REVISED DOCUMENTS IN ORDER TO CONTINUE TO USE THE WEBSITE.
I. Gyms and Customers.
The Website contains many features that can be useful to providers of health and fitness services, such as gyms and health clubs (“Gyms”), and individuals who join Gyms and who are interested in health and fitness (“Customers”). Your use of this Website and those features depends on whether you are a Customer or a Gym.
II. If You are a Gym.
If you are a Gym, then this section applies to you. You may access and use certain software that is owned and hosted by GymHit (“Software”) that may include features designed to be useful to your business, including: (a) a directory of other Gyms; (b) an online directory of your employees and their profiles; (c) scheduling functionality, to allow Customers to schedule classes offered at your Gym facility; (d) the ability to create a social media page, and to “connect” with and communicate with Customers using the Website through social media functionality; (e) the ability to receive, and respond to written reviews of your facility by Customers (“Reviews”), and to remedy any deficiencies or problems; (f) online payment capabilities.
- A. Gym Account. In order to access and use the Software, you must first register with GymHit, and pay the corresponding fees (“Fees”) described below. You may register with GymHit and create a Gym account (a “Gym Account”) by fully and accurately completing the sign up page, and providing to GymHit such fully accurate information as GymHit may reasonably require, including without limitation your name, your email address, street address and billing information and where you wish to use enhanced functionality such as online payments, a valid credit card number (collectively, “Gym Information”). You agree to keep all Gym Information updated and correct. Your Gym Account is personal to you, and you may not share it or allow it to be used by anyone other than you. You are solely responsible to ensure that your Gym Account is used only by you and in a manner consistent with this Agreement. GymHit shall allow you to select a user name and password for your Gym Account, subject to GymHit’s rules. You agree to keep such user name and password confidential, and not allow any third party to use such user name or password. You agree to indemnify and defend GymHit from and against any losses or liabilities arising from any disclosure or misuse of your user name or password.
- B. Customer Information. As part of Gym Information, you may, where you have obtained permission from a corresponding Customer, provide contact information from the Customer to GymHit in order that GymHit may contact that Customer regarding the features and options of the Website and related services.
- C. License. Subject to your compliance with this Agreement, including without limitation your timely payment of Fees (if any), GymHit hereby grants you a revocable, limited, non-exclusive, non-transferable license (without the right to grant sublicenses) to access and use the Software in the normal course of your business during the term of this Agreement.
- D. Fees and Payment. You agree to pay to GymHit those Fees that GymHit charges for use of the Software, if any, through the credit card described in Section II(A) above. It is you responsibility to ensure that such credit card is valid, and where GymHit is unable to process payment of any Fees through that credit card, you understand and agree that GymHit may suspect access to your Gym Account.
- E. Sales. You may advertise and sell goods and services related to your Gym facility to Customers through your social media page and Gym Account. You agree that any sales of such goods and services are strictly between you and each corresponding Customer. You agree that you will advertise and sell only commercially reasonable goods and services related to health and fitness, and you shall do so only in an honest and ethical manner. You will not advertise or sell any drugs, drug paraphernalia, tobacco, medical devices, or any items that are illegal, restricted by law or in the judgment of GymHit offensive or objectionable. You hereby agree to indemnify, defend and hold harmless GymHit for any claims, demand, threats, suits or proceedings by any third party (including without limitation Customers) arising from or in connection with any good or services supplied by you. This defense and indemnification obligation will survive the expiration or termination of this Agreement.
III. If You are a Customer.
If you are a Customer, then this section applies to you. You may access and use the Software, but including features that are designed to be useful to you personally, including: (a) an online directory of Gyms; (b) social network features; (c) scheduling functionality, to allow you to schedule classes at a Gym facility; (d) the ability to create a social media page, and to “connect” with and communicate with Gyms and other users using the Website through social media functionality; (e) the ability to provide Reviews of Gyms that you have visited, and to assist Gyms in responding to your Reviews to remedy any deficiencies or problems; (f) online payment capabilities (but only if your corresponding Gym has elected to use that feature).
- A. Customer Account. In order to access and use the Software, you must first register with GymHit. You may register with GymHit and create a Customer account (“Customer Account”) by fully and accurately completing the sign up page, and providing to GymHit such fully accurate personal information as GymHit may reasonably require, including, without limitation your name and email address (collectively, “Customer Information”). You agree to keep all Customer Information updated and correct. Your Customer Account is personal to you, and you may not share it or allow it to be used by anyone other than you. You are solely responsible to ensure that your Customer Account is used only by you and in a manner consistent with this Agreement. GymHit shall allow you to select a user name and password for your Customer Account, subject to GymHit’s rules. You agree to keep such user name and password confidential, and not allow any third party to use such user name or password. You agree to indemnify and defend GymHit from and against any losses or liabilities arising from any disclosure or misuse of your user name or password.
- B. License. Subject to your compliance with this Agreement, GymHit hereby grants you a revocable, limited, non-exclusive, non-transferable license (without the right to grant sublicenses) to access and use the Software for your personal use during the term of this Agreement.
- C. No Fees. There are no Fees payable by Customers, although GymHit reserves the right to charge Fees in the future. In such case GymHit will modify this Agreement as provided above, and you will be required to confirm your agreement with such modification.
IV. Use of the Website.
Whether you are a Gym or a Customer, this section and the rest of this Agreement applies to you. Gym Accounts and Customer Accounts are referred to collectively as “Accounts.” When you use the Website or send emails to GymHit, GymHit may communicate with you electronically, including via return emails, and you agree that all such electronic communications satisfy any legal requirement that communications be in writing.
- A. Postings. You may use your Account to submit materials, including without limitation photographic, video, text and other materials (collectively, “Postings”) to the Website, including without limitation consisting of or as part of Reviews, questions or comments. You agree that neither you nor any third party has any expectation of privacy or confidentiality as to any Postings. You shall be solely responsible for your own Postings and the consequences of submitting or publishing them. In connection with Postings, you represent and warrant that you have all necessary rights to allow inclusion and use of the Postings on the Website.
- B. License. By submitting Postings to GymHit, you hereby grant GymHit a worldwide, non-exclusive, royalty-free, paid up, sublicensable, perpetual, irrevocable and transferable license to use, reproduce, distribute, prepare derivative works of, display and perform such Postings in connection with the Website and GymHit’s (and its successors’ and affiliates’) businesses, including without limitation for promoting and redistributing part or all of the Website in any media formats and through any media channels. You also hereby grant each user of the Website a non-exclusive license to access your Postings through the Website, and to use, reproduce, distribute, display and perform such Postings through the functionality of the Website. You understand and agree that GymHit may retain indefinitely copies of Postings that have been removed by GymHit from the Website.
- C. Restrictions. In connection with Postings, you agree that you will not submit material that is illegal, inaccurate, hateful, racist, offensive, vulgar, obscene, disgusting, indecent or objectionable. In connection with Postings, you also agree that you will not submit material that is copyrighted by, protected as a trade secret of or otherwise subject to the proprietary rights (including without limitation privacy and publicity rights) of, any third party, unless you have permission from that third party to do so and to grant GymHit all of the license rights granted herein. GymHit agrees that you may use your Account and the Website to promote a business with which you are personally affiliated, but only so long as your use of your Account and the Website does not consume excessive GymHit resources, is tasteful and reasonable, and otherwise complies with all other requirements of this Agreement. You agree that GymHit shall be the sole arbiter of whether any Postings are in breach of any and all of the foregoing obligations.
- D. Removal. GymHit does not endorse any Postings or any opinion, recommendation, or advice expressed therein, and GymHit expressly disclaims any and all liability in connection with Postings. GymHit does not permit copyright infringing activities or infringement of intellectual property rights on the Website, and GymHit reserves the right to remove any and all Postings without notice.
Any use of the Website through your Account or otherwise must conform to the following:
- A. You will not redistribute any part of the Website or any content appearing on or visible through the Website, including without limitation Postings.
- B. You will not change, remove or add to any part of the Website.
- C. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or other automated programs to access the Website. You will not obtain or attempt to obtain any personally identifiable information of any other users or third parties from the Website, or use any services available on the Website (including without limitation email) for commercial purposes other than as permitted by this Agreement.
- D. You agree that you will not frame any portion of the Website, or use GymHit’s name or trademarks in any hidden text or metatags.
- E. You agree that GymHit may add to, delete from or modify the Website at any time without notice and without permission from you or any third party.
- F. You agree that the content on the Website and the trademarks and service marks on the Website are owned by or licensed to GymHit. There are no implied rights or licenses in this Agreement.
- G. You may access Postings for your information and use solely as intended through the provided functionality of the Website.
- H. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website, and you will not impersonate any third party or interfere with any third party’s use of the Website.
- I. You understand and agree that when using the Website you may be exposed to Postings from a variety of sources, and that GymHit is not responsible for the accuracy, content, usefulness, safety, or intellectual property rights of or relating to such Postings. You further understand and acknowledge that you may be exposed to Postings that are illegal, inaccurate, hateful, racist, offensive, vulgar, obscene, disgusting, 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 GymHit with respect thereto. You agree to defend, indemnify and hold harmless GymHit, its parent, officers, directors, employees and agents, from and against any and all claims, damages, threats, suits, proceedings, losses and liabilities (including attorneys’ fees) arising from or related to: (1) your use of and access to the Website; (2) your breach of this Agreement; (3) your violation of any third party right, including without limitation any copyright, property or privacy right; or (4) any claim that one of your Postings caused damage to a third party. This defense and indemnification obligation will survive the expiration or termination of this Agreement.
VI. Content of Postings and Links.
The term of this Agreement will continue until terminated by you or GymHit upon notice, with or without cause. GymHit may also suspend access to your Account at any time with or without notice and with or without cause. If GymHit terminates this Agreement without cause, and you are a Gym, GymHit will refund to you any prepaid Fees.
VIII. Limitation of Liability.
IN NO EVENT SHALL GYMHIT BE LIABLE TO YOU OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF GYMHIT UNDER THIS AGREEMENT OR REGARDING THE SOFTWARE OR THE WEBSITE EXCEED ONE THOUSAND DOLLARS ($1000). Some jurisdictions do not allow certain limitations of damages so the foregoing may not apply to you.
IX. Law and Arbitration.
This Agreement shall be subject to the laws of the State of California as apply to contracts entered into and performed in California between California residents and without regard to conflicts of laws principles. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, before a single arbitrator who shall be selected in accordance with such rules. The location of the arbitration shall be San Diego, California, and the fee of the arbitrator shall be shared equally by the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Subject to the foregoing, the State and Federal courts located in San Diego, California, shall have sole jurisdiction over any dispute arising hereunder, and the parties hereby irrevocably consent to the personal jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
GYMHIT PROVIDES THE SOFTWARE, THE WEBSITE AND ALL GOODS AND SERVICES ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY. GYMHIT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEAL, USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE. Some jurisdictions do not allow disclaimers of certain warranties, so the foregoing may not apply to you.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission of GymHit. Any purported assignment without such permission shall be void. This Agreement may be assigned by GymHit in whole or in part without notice. Any waiver of any rights of GymHit under this Agreement must be in writing, signed by GymHit, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Website shall at all times comply with all applicable laws, rules and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. You agree that: (a) the Website shall be deemed solely located in California; and (b) the Website is and shall be deemed a passive website that does not give rise to personal jurisdiction over GymHit, either specific or general, in jurisdictions other than California. YOU AND GYMHIT AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Copyright © 2015 GymHit, Inc. All Rights Reserved.
If you have any questions or comments about GymHit or this Statement, you may contact GymHit at:
GymHit, Inc. 2325 Anita Ave. Sacramento CA 95822 o: 415.496.9621 firstname.lastname@example.org
GYMHIT and the GymHit logo are trademarks of GymHit, Inc., and may not be used without prior written permission.