MAKE FIT HAPPEN, INC.

 

TERMS OF SERVICE

TRAINER VERSION

 

 

PLEASE READ THE FOLLOWING TERMS OF SERVICE ("AGREEMENT") CAREFULLY.

THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU AND MAKE FIT HAPPEN, INC. ("XUBIFIT," "WE", “US" OR “OUR”) AND YOU (“YOU”, “YOUR”, “TRAINER”, FITNESS PROFESSIONAL” OR “FIT PRO”). BY ACCESSING OR USING THE SITE, APPLICATIONS, PRODUCTS OR ANY SERVICES PROVIDED BY US, INCLUDING, BUT NOT LIMITED TO DOWNLOADING, INSTALLING OR USING THE MOBILE APPLICATION ("APPLICATION") OR WEBSITE ("SITE"), YOU REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO AND AGREE TO BE BOUND BY THESE TERMS SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, PLEASE DO NOT ACCESS, INSTALL OR USE THE SITE, SERVICES, PRODUCTS, AND APPLICATION(S) PROVIDED BY US.

 

If you do not agree to be bound by this Agreement, then you may not use the Services. Make Fit Happen, Inc. reserves the right to modify this Agreement at any time without prior notice. You agree that each visit you make to the Site or the Application will be subject to the then-current Agreement and continued use of the Site and/or Services now or following modifications in this Agreement confirms that you have read, accepted, and agreed to be bound by such modifications. The term “YOU”, “YOUR”, “USER”, “TRAINER”, “FITNESS PROFESSIONAL” or “FIT PRO” shall refer to any person or entity who uses, downloads, accesses, browses the App or the Site or uses or receives any Services, Products or Application(s).

 

WHAT WE DO

XUBIFIT.com is an online review platform where individuals (“Consumer” or “Consumers”) can discover verified recommendations of top-rated fitness professionals capable of delivering training in the gym, home, office, outdoors and online.  Our platform is specifically designed to enrich, and impact everyday life for those seeking better health through fitness by delivering value, and motivation from fitness professionals capable of providing uncompromising principals

 

Additionally, We will eventually offer the Consumer a varietal line of supplementation products, and fitness gear.  These products will provide the fitness professional with an opportunity to garner an income as an affiliate.

 

TERMS

This Agreement ("Agreement") governs your relationship with Make Fit Happen, Inc. In this Agreement, we will refer to you, the Fitness Professional, your company (including any predecessor entities of your company), all of your d/b/a's, affiliates, agents, employees, representatives, subcontractors and any individuals performing work on your behalf as "You", “Your”, Trainer or "Fit Pro".  We refer to Make Fit Happen, Inc. and its agents, officers, directors, shareholders, employees and each of their successors and assigns as "We", "Us", “Our” or " XUBIFIT".  References herein to the XUBIFIT website include any and all websites now, or hereafter, owned or operated by Make Fit Happen, Inc. shall be referred to as Site.  The following terms and conditions govern your access to and the use of the Site, Apps, Services and Goods.  The Site, Apps, Services, and Goods herein ("Services") are offered to you, conditioned on your acceptance without modification, of the following terms, conditions, and notices contained in this Agreement constitute a legally binding Agreement between You and XUBIFIT.  Your use of the Site or downloading, accessing, installing or use of our Apps or submission of requests via telephone/chat/email constitutes Your agreement to all such terms, conditions, and notices in effect at such time and furthermore represents to Us that You are legally competent to enter into and agreed to the terms of this Agreement. If you do not agree to the terms of this Agreement, please do not access, install or use the Services.  We reserve the right to modify this Agreement at any time without prior notice. These Terms of Service were last updated on April 6, 2020.

 

WHAT WE AGREE

·       We agree to offer a website where Fit Pros can create a free business profile.

 

·       We agree to offer a Premiere Profile page to Fit Pros choosing to pay for a membership subscription. The Premiere Profile page is a marketing platform where Fit Pros can share the following with Consumers:

o   Company name

o   Company website

o   Contact information: Phone -- Email -- Social media accounts

o   Photos

o   Video

o   Certifications/Training

o   Specializations

o   Professional degrees

o   Types of Training: Gym/Studio -- Home/office -- Outdoors -- Online

o   Years of training

o   Awards / Accomplishments

o   Rates

o   Who You Are: 13 questions to tell the world who you are

 

·       We agree to provide additional business tools to fitness professionals that choose to pay for a membership subscription.  These may include, but are not limited to:

o   Mobile Training App (i.e. Trainerize mobile app). Our App is for the explicit purposes of:

o   Designing and delivering exercise plans to your client(s);

o   1-way or 2-way communication with your client;

o   Monitoring Your client’s activities through MyFitnessPal, Fitbit and Withings Health Mate, and any future services that we deem necessary.

o   Conversely, Our App shall not include ‘Add-On’ services such as Mindbody, ABC Financial, Evolution Nutrition.  You are welcome to purchase add-ons for Yourself or Business.

o   Business forms: PAR-Q -- Fitness Assessment Questionnaire -- Disclosure, Consent, Assumption of Risk, Release of Liability and Indemnification -- Testimonial and Photo Release -- Medical Release -- Movement Assessment -- Squat Assessment and Clarification -- Personal Training Agreement

o   Client monthly newsletter

o   Automatic Facebook Posts

o   Affiliate income opportunity (i.e. dietary supplements).

o   Premiere Profile page.

 

·       We agree to provide a rating and review system to Fit Pros choosing to pay for a membership subscription.

 

WE RESERVE AS OUR RIGHT

·       We reserve the right, but not the obligation, to edit or abridge, or to refuse to post, or to remove any content that You or any other users post on any Make Fit Happen, Inc. owned or operated Websites or Apps if We determine (in Our sole discretion) that such content contains or features any of the following:

o   Offensive, harmful and/or abusive language, including without limitation: expletives, profanities, obscenities, harassment, vulgarities, sexually explicit language and hate speech (e.g., racist/discriminatory speech.)

o   References to illegal activity.

o   Language that violates the standards of good taste or the standards of this Site.

o   Statements that are or appear to be false.

o   Comments that disparage Make Fit Happen, Inc. and/or XUBIFIT.

 

·       We reserve the right to limit the number of subscription memberships available to Fit Pros to approximately twenty (20) percent of all available Fit Pros in a given area, region or province in an effort to make its services more advantageous to those Fit Pros already doing business with Us.

 

WHAT YOU AGREE

 

·       You agree to become, and to maintain status as an Independent Contractor doing business with Us, the Fit Pro must abide by all Terms of Service set forth at all times.  It should be noted that any materials and documentation provided by the Fit Pro to Us containing the Fit Pros driver’s license, passport and/or military identification will not be retained by us, but rather electronically destroyed by our system immediately upon verification.

 

·       You agree that nothing in this Agreement shall be construed as creating the relationship of principal and agent or of partnership or of joint venture or of any other form of legal association which would grant one Party any power to bind the other Party or to assume or to create any obligation or responsibility, expressed or implied, on behalf of the other Party or in the other Party’s name. More specifically, Fitness Professionals act as Independent Contractors and not as agents or employees of Make Fit Happen, Inc.

 

·       You agree that at no time shall You provide false witness to others in a manner that would have such persons to believe that You are an employee of Make Fit Happen, Inc. or XUBIFIT. You agree that Your respective role with XUBIFIT site is that of an Independent Contractor and not as an employee or agent of Our company.  We are not liable for acts, errors, omissions, representations, warranties, breaches or negligence of the Fit Pro or from any personal injuries, death, property damage, or other damages or expenses resulting therefrom.

 

·       You agree to consent to the collection, use, and disclosure of personally identifiable information in accordance with the Privacy Policy.

 

·       You agree that upon registering on the Site and/or the Trainerize App, You will be prompted to disclose certain information about yourself, including, but not limited to your name, your company name, your contact information, your level of education, experience, certifications and accreditations as such pertains to Your qualifications to train other individuals.  This information will be used in two manners. 1) The information You provide will be displayed on Your online Premiere Profile page to provide the Consumer with the necessary information in which to make the most informed decision when choosing a Fit Pro.  By providing this information You are expressly consenting to being contacted by the Consumer via phone, fax, email, mail, text (SMS) messaging, or other reasonable means, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list. 2) The information You provide will be used by Us so that We may service Your account, to reasonably address matters pertaining to Your account, including but not limited to notifying You for purposes reasonably related to the Services You provide or marketing related materials notifying You of other available or upcoming Goods and Services We have to offer You.  By providing this information You are expressly consenting to allow Us to contact You via phone, fax, email, mail, text (SMS) messaging, or other reasonable means, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list. You promise that all information You provide (including but not limited to Your contact information) will be accurate, current and truthful to the best of Your knowledge. If You provide any information that is untrue, not current or incomplete, or if We have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, then We will retain the right to refuse any current or future use of our Services (or any portion thereof) by You.  You are responsible for any use of Site and Services by persons to whom you intentionally or negligently allow access to your password. For complete details on our use of your information, please see our Privacy Policy.

 

·       You agree that You are qualified and capable of performing the Services in which You stipulated during Your registration.

 

·       You agree, and hereby represent that while acting as an independent Fit Pro, You are free from any felony criminal convictions, OR that You have provided Us with an accurate and truthful written statement detailing any exceptions. If at any time during Your term with Us, You as an individual should have a felony conviction entered against You, You will promptly notify Us.  You further represent that You have not been sanctioned or penalized by any governmental authorities in connection with Your provision of services to any of Your previous customers. You authorize Us to verify that all of the above representations are truthful and accurate at any time while this Agreement remains in effect.

 

·       You agree, and hereby represent that You and all others operating on Your behalf while acting as a company are free from any felony criminal convictions, OR that You and all others operating on Your behalf have provided Us with an accurate and truthful written statement detailing any exceptions. If at any time during Your term with Us, You and all others operating on Your behalf acting as a company should have a felony conviction entered against the aforementioned, You will promptly notify Us.  You and all others operating on Your behalf further represent that the Fit Pro has not been sanctioned or penalized by any governmental authorities in connection with Your provision of services to any previous Customers. You and all others operating on Your behalf authorize Us to verify that all of the above representations are truthful and accurate at any time while this Agreement remains in effect.

 

·       You agree to abide by and to follow the terms of the Make Fit Happen, Inc. resolution process - - - XIII: Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause.

 

·       You agree to cooperate with Us if We attempt to facilitate the resolution of any Customer complaint(s) between You and Your Customer(s). However, We are not liable to You or any Customer if such matters cannot be resolved. While We are not obligated to intervene in matters between You or any Customer, if We choose to do so and find in favor of the Customer, We reserve the right to charge You for any amounts paid to Your Customer pursuant to a dispute between You and said Customer, or based upon Your performance of or failure to perform Services for said Customer, and You agree to reimburse Us for any such payments. You agree that We shall have the right to disclose any information We have regarding You and Your company to any authorities requesting information from Us regarding any work or services You have performed.  Additionally, we may, without further notice or warning and at Our discretion, access, use, store, and disclose the data located on Our App as it pertains to communications by and between You and the Customer. We will use such information for business purposes, including resolving a Customer issue, improving customer service, fraud prevention, and assist Us with identifying violations of this Agreement.

 

·       You agree that if You provide written comments or testimonials about Our service or activities, You agree that We shall have sole ownership of any and all intellectual property rights in such comments or testimonials, and that We may post, re-post and publish Your comments or portions thereof at Our sole discretion on Site or in marketing materials including Your name, Your company or Your agency, and that You shall not be entitled to any payments associated with Our use of the aforementioned. You hereby authorize Us to use Your name, Your company’s name, and Your agency's name, as applicable, and any of the trademarks, service marks, trade names and logos, content including photographs, in the form or format that You supply to us. You further represent that You have all necessary rights to display any of the logos, service marks, trademarks, and any other content that You upload to Us, and You represent that Your uploading for display of any such content, and the use by Us of such content as contemplated by this Agreement, shall not violate any third party's intellectual property rights. If there are any limitations or restrictions pertaining to the use or presentation of such logos, trade or service marks, it shall be Your responsibility to provide Us in writing with any such restrictions or limitations of use. If expressly authorized by Us in writing in advance, You may be authorized during the term of this Agreement to use certain marks of XUBIFIT as necessary to promote Your business. You are expressly prohibited from registering any trademarks or domain names of Make Fit Happen, Inc. and XUBIFIT.

 

·       By providing any content to Us, including but not limited to photographs ("Content"), You agree, represent and warrant to Us that You own or have all necessary rights to use the Content, and grant to Us the rights granted below. The forgoing representation includes, but is not limited to a representation and warranty that You rightfully own or have the necessary rights (including any necessary releases) to grant all rights granted below in relation to any persons, places or intellectual property pictured in any photographic content that You provide. In addition, if You provide any content that is protected by copyright, You represent that You have obtained any necessary permissions or releases from the applicable copyright owner. You hereby grant Us and its users a perpetual, irrevocable, non-exclusive, royalty-free, transferable, assignable, sub-licensable, worldwide license to use, store, display, reproduce, modify, edit, abridge, crop, create derivative works, perform, distribute, and place advertising near and adjacent to your Content on the Site, and on any other websites owned or operated by Make Fit Happen, Inc. Nothing in this Agreement shall restrict other legal rights We may have to the Content, for example under other licenses. We reserve the right to remove or modify Content for any reason, including Content that We believe violates this Agreement or Our policies. You further authorize Us and Our affiliates, licensees, sublicensees, and users, without compensation to You or others, to reproduce, print, publish and disseminate in any format or media (whether now know or hereafter created) the Content, including, if submitted, Your name, voice and likeness throughout the world, and such permission shall be perpetual and cannot be revoked for any reason. In the event your account is terminated, Make Fit Happen, Inc., XUBIFIT and its users may retain Your Content and may continue to use any of Your Content (pursuant to the license granted above). You acknowledge and agree that any Content You post or provide may be viewed by the general public and will not be treated as private, proprietary or confidential. Further, to the extent permitted under applicable law, You waive and release and covenant not to assert any ethical rights that You may have in any Content posted or provided by You.

 

·       You agree and acknowledge that We may monitor and/or record any telephone calls by and between You and Make Fit Happen, Inc.

 

·       You agree that the opportunity provided to You by Us, including the Site, Services, Apps and Goods are to be considered a privilege, and should not be considered an ownership of such.

 

CONDUCT

·       You agree not to engage in any illegal acts or acts of wrongdoing, dishonesty or unethical business practices with Us, any Customer or other third party, including, but not limited to, disclosing any user personal information to any third party. You will at all times be in full compliance with all applicable Federal, State, Provincial, local and other laws and regulations that apply to your activities.

 

·       The following is a partial list of the types of conduct that are illegal or prohibited on any XUBIFIT Website, Trainerize Website and App. We reserve the right to investigate and take appropriate legal action against anyone who, in Our sole discretion, engages in any of the prohibited activities on the site.  We explicitly reserve the right to refuse or revoke access to the Services at any time without prior notice for your failure to comply with the terms set forth in this Agreement or to comply with applicable laws.  Prohibited activities include, but are not limited to, the following:

o   You will not use any XUBIFIT Site for any purpose that is unlawful or prohibited by these terms, conditions, and notices or engage in any illegal acts or acts of wrongdoing, dishonesty or unethical business practices, including references to illegal activity.

o   You will not misuse the Services or use the site in any manner which could damage, disable, overburden, or impair any XUBIFIT Site or interfere with any other party's use and enjoyment of any XUBIFIT Site.

o   You will not circumvent any part of any XUBIFIT or its Services by circumventing the Trainerize App to serve Your purpose.

o   You will not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through any XUBIFIT Site.

o   You will not use the Services to advertise, solicit or transmit commercial advertisements, including “spam”.

o   Posting material that infringes the intellectual property rights, privacy rights, publicity rights, trade secret rights, or any other rights of any party.

o   Posting material that is unlawful, obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any other person or entity; including language that violates the standards of good taste or the standards of this Site (i.e. racist/defamatory speech).  We take no responsibility for monitoring such content or in evaluating it.

o   Comments that disparage Make Fit Happen, Inc. and/or XUBIFIT.

o   Posting advertisements or solicitations of business.

o   After receiving a warning, continuing to disrupt the normal flow of dialogue, or posting comments that are not related to the topic being discussed (unless it is clear the discussion is free form).

o   Posting chain letters or pyramid schemes.

o   Impersonating another person.

o   Distributing viruses or other harmful computer code which is malicious or technologically harmful.

o   Harvesting or otherwise collecting information about others, including email addresses, without their consent.

o   Allowing any other person or entity to use your identification for posting or viewing comments.

o   Posting the same note more than once or "spamming".

o   Harassing, threatening, stalking, or abusing any person.

o   Attempting to gain unauthorized access to, interfere with, damage or disrupt any parts of any XUBIFIT site, the server on which the site is stored, or any server, computer or database connected to the site.

o   Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the site, or which, in Our sole discretion, exposes Make Fit Happen, Inc., and XUBIFIT or any of its customers or suppliers to any liability or detriment of any type.

 

·       You agree and acknowledge that to knowingly sharing, distributing, transferring, or selling the information of any Consumer to any outside entity not expressly set forth in this Agreement, is a very serious breach of contract and fraudulent matter.  Any such action to another individual, employee, subcontractor, partner, entity or business could result as an invasion of privacy rights of others, significant costs and damages to others and to Us and other Fit Pros. Responding to such a violation would also result in the loss of time, and effort on Our part. There also may be regulatory fines and penalties imposed for contacting consumers and businesses in a manner not in accordance with the applicable laws and regulations including but not limited to federal state and provincial do-not-call regulations and federal state and provincial anti-spam regulations. Accordingly, you agree to fully indemnify and be liable to Us, for all the damages, whether direct or indirect, punitive and consequential, and any regulatory or judicial fines or penalties that may arise from such activities.

 

PRE-SCREENING PROCEDURES AND DISCLAIMERS
We use the following criteria as part of its membership enrollment process ("registration") for Fit Pros.  Fit Pros working for one of Our corporate partners may have already passed pre-screening prior to employment with the corporate partner, and therefore may not have to be pre-screened again.

 

·       Identification.  You agree to provide Us with a photocopy of your valid driver’s license, valid passport or valid military id, and copies of all certifications, degrees, accreditations and recognized training in which You claim to have attained.  We will match Your identification with the names on the certifications.  If you have an annual subscription membership and a Premiere Profile page, after matching your criteria We will place a ‘verification’ badge on Your Premiere Profile page for Consumers to view.

 

·       Criminal Records SearchWhile not required, nor pertinent if you do not have an annual subscription membership Premiere Profile page, it is highly recommended that You purchase a background check.  This national background check will provide the Consumer with ‘piece-of-mind’ when considering hiring You.  Rest assured that the information attained will not be available to the general public.  Depending on the outcome of your background check, We will either place a “background check complete” button on Your Premiere Profile page for Consumers to view, or reserve the right to reject your application.

 

·       Sex Offender Search. While not required, nor pertinent if you do not have an annual subscription membership Premiere Profile page, it is highly recommended that you purchase the aforementioned background check because the background check also includes a Sex Offender Search which will provide the Consumer with additional ‘piece-of-mind’ when considering hiring You.  Rest assured that the information attained will not be available to the general public.  Depending on the outcome of your background check, We will either place a “background check complete” button on Your Premiere Profile page for Consumers to view, or reserve the right to reject your application.

 

OUR APP

·       If You use Our App, then You agree to create a Trainerize account, and You understand and agree that We may, at Our discretion monitor Your Trainerize account, including, but not limited to the information that You provide to the Customer. When You register for an account with Trainerize, then You become a user of Our App and other applicable Services. Additionally, you understand that if cancel your membership with Us, or if your account is terminated by Us, then the clients in your Trainerize account will receive notification that they may no longer be using Our App upon said termination/cancellation.

 

·       If You use Our App You agree that you understand that separate terms of service and fees, including, without limitation, such terms of service and fees imposed by Your mobile network operator (the “Carrier”), including fees charged for data usage and overage, are to be the sole responsibility of the Fit Pro.

 

·       If You use Our App You agree that it is Your sole responsibility to provide a device or devices, an Internet connection [wired or wireless] and/or data plan, and other equipment required to download, install and use Our App.  You are solely responsible for any fee(s), cost or expense in which You may incur to download, install and/or use the Service(s) via Your computer, mobile device and/or smartphone.  We do not guarantee that a Service or Services will be available in any particular geographic region or location.  While We intend for the Service to be available with an uptime of at least 99 percent of the time, some factors are beyond our control, and in no event, will We be liable for a lack of Service.  Furthermore, We reserve the right to change, suspend, remove, or disable access to the Services at any time without notice.  In no event will We be liable for the removal of or disabling of access to the Services.

 

·       If you use Our App you agree that Our App is provided “as is” without warranties of any kind.  We have no liability to You with regards thereto.

 

·       Use of Our App is provided to You as part of the service provided to membership subscription holders and is subject to applicable laws.

 

FEES

·       You agree to be bound by the applicable pricing provisions herein described (all fees are stated and payable in US dollars).

 

·       You agree to pay Us applicable, non-refundable fees (“Fees”) which may include: 1) Recurring Fees: Membership Subscription Fees, ACH Transfer/Credit Card Processing Fees; 2) Background Check/Screening Fee; and 3) Merchandise/Goods Purchase Fees.

 

·       To facilitate payment for the aforementioned Fees, You authorize Us and the payment processing service retained by Us (currently, Stripe) to facilitate the transaction of the agreed upon Fees and applicable charges you selected at registration and during Your purchase.  All payments transacted through Stripe shall be subject to the Terms & Conditions of Stripe.  By agreeing to this Agreement, You agree to be bound by the Stripe Agreement, as the same may be modified by Stripe from time to time. As a condition of Us facilitating payment processing services through Stripe, You agree to provide Us with accurate and complete information about You and, if applicable, Your business, and You authorize Us to share Your information and transaction information related to Your use of the payment processing services provided by Stripe.

 

·       All fees owed to Us for Fees, Subscriptions, Services and Goods shall be billed in advance prior to You receiving the aforementioned.

 

·       Membership Subscription Fees:

o   Premiere Profile: $99.00 billed annually.

o   Featured Fitness Professional: $10.00 per month, billed semi-annually.

 

·       Goods/Supplements

o   Items purchased outside the store at https://store.xubifit.com will be billed using the aforementioned process and at the rate posted on the site.

 

·       YouTube Video Hosting Fees:

o   If you have a YouTube video on your Premiere Profile page, the fee for annual hosting is currently $0.00 per month.

 

·       Background Check

o   If you chose to purchase a “Background Check”, all costs required with having this service performed is solely Your responsibility to pay. As of January 6, 2020, the cost to have services below performed by Checkr, a background services company is a one-time charge of $44.00.

o   Background check includes: County Criminal Search (Last 7 Years) == National Criminal Search (Standard) == Sex Offender Search == SSN Trace == Global Watchlist Search

 

·       Automatic Renewal of Membership Subscription

o   After your initial membership subscription period, your membership subscription will automatically renew for an additional period (“Renewal Period”) of 1-year or until such a time You terminate Your membership subscription.  If You want to change or terminate your membership/subscription, You may do so by contacting us at FitProHelp@XUBIFIT.com and stating Cancellation in the subject line.  If You terminate Your membership subscription, You may continue to use your services until the end of Your current term.  Further, You will not be eligible for a refund of any portion of the fee paid for any membership subscription period if canceled.  You authorize Us to charge Your provided payment method at the beginning of any Renewal Term. You also authorize Us to charge You for any taxes that may be imposed on your membership/subscription payments or other charges in which You have accrued from the use of the Site or Services provided by Us. Upon the renewal of Your membership/subscription, if We do not receive payment from Your payment method or payment method provider, 1) You agree to pay all amounts due on Your account upon demand, and/or 2) You agree that We may either terminate or suspend Your membership subscription and continue to attempt to charge Your payment method until payment is received. Past due balances will be subject to a late charge equal to the lesser of 1.5% per month or the maximum amount allowed by applicable law. In addition, any returned payments will incur a $30 fee per transaction.

 

o   It should be noted that if Your account is suspended or canceled at any time, You will no longer have access to Your Customers through any XUBIFIT site and the Trainerize App, and all Customers will be reassigned to another Fit Pro at either Our discretion or the that of the Customer.

 

o   Free Trials and Other Promotions. Any free trial or other promotion that provides a membership subscription to Our Services will automatically renew in the same manner as set forth above under the section titled "Automatic Renewal of Membership Subscription".  The Renewal Price for any Renewal Terms will be at a rate that is greater than during the free trial or promotion initial term. You must cancel your membership subscription before the end of the trial period in order to avoid being charged the Renewal Price.

 

·       Miscellaneous

o   For the purposes of vetting qualified Fit Pros, We will provide the consumer with the ability to rate their experience working with a respective Fit Pro via our ratings & reviews system - - - it is strongly recommended that all Fit Pros solicit ratings from their Customers.  Because the traditional “five-star” grading system has been shown to be unfair to those providing products/services, We created a simpler method in which to score a Consumers experience with a Fit Pro.  When given the option to choose between a simple Thumbs Up [positive experience] or Thumbs Down [negative experience] Consumers are more likely to provide a positive experience if the Fit Pro has put forth more than a modicum of effort in delivering their agreed upon Services.

 

o   We do not guarantee that a Fit Pro will receive any specific number of clients through the use of Our Services.  We do not make guarantees, representations or warranties regarding a Consumers level of interest to have future training services rendered by a Fit Pro; the Consumers ability to pay a Fit Pro; the accuracy of the information provided by the Consumer, nor do We guarantee that a Fit Pro will be successful in contacting a Consumer.  We are not involved in, nor do We have any responsibility for contracts by and between a Fit Pro and their Customer; the Customer's creditworthiness, or any payments a Fit Pro or any disputes that may arise by and between a Fit Pro and a Customer.

 

o   We are free to contract with other Fit Pros as this is not an exclusive contract.

 

o   You acknowledge that it is Your sole responsibility to ensure that the information entered during the registration, including, but not limited to contact and billing information, is accurate and kept up to date. We are not responsible, or liable, for undelivered goods or notifications. You agree to promptly notify Us if your payment method changes or is canceled (including if your form of payment is lost or stolen), or if You become aware of a potential breach of security (such as an unauthorized disclosure or use of your payment method). In addition, You authorize Us to obtain updated information from Your financial institution, credit or debit card issuer.

 

o   Any disputes regarding charges to Your account must be submitted to Us in writing within 30 days of the date you are inquiring about. You agree to waive all disputes not made within the 30-day period, and all such charges will be final and not subject to challenge.

 

o   Past due accounts may be turned over to a third-party collection agency and reported to a credit rating agency and We may bill you for, and You agree to pay for any and all collection and related litigation fees.

 

o   No fee is due or payable to the extent such fee is in violation of any applicable law.

 

o   We are not obligated to refund to You any amounts of prepaid membership subscription fees or other prepaid fees, except solely in the event you rescind or terminate your subscription within a twenty-four (24) hour period following Your initial membership subscription purchase.

 

o   You authorize Us to charge You for any sales or similar taxes that may be imposed on Your recurring fees, or any other fees charged by Us.

 

INTELLECTUAL PROPERTY

·       The entire contents of this and any other Site owned and operated by Us is copyrighted as a collective work under the laws of the United States and other copyright laws. Make Fit Happen, Inc. holds the copyright in the collective work. The collective work may include works which may be the property of other members. Without expressed written consent, You are not allowed to download any portion or portions of the material from the Site.  Furthermore, any redistribution, retransmission or publication of any copyrighted material is strictly prohibited. You agree not to change or delete any proprietary notices from materials downloaded from the site.  The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by Make Fit Happen, Inc. and all of its agents, officers, directors, shareholders, employees and each of their successors and assigns and are protected by the United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

 

·       You must not reproduce, distribute, modify, create derivative works from, publicly display, publicly perform, republish, download, store or transmit any of the material on the Site.

 

·       You must not (i) modify copies of any materials from the Site; (ii) use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text, and (iii) delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the site. You must not access or use for any commercial purposes any part of the site or any services or materials available through the site.

 

·       If You print, copy, modify, download or otherwise use or provide any other person with access to any part of the site in breach of the Terms of Service, your right to use the Site and Services will cease immediately and You must, at Our option, return or destroy any copies of the materials You have made. No right, title or interest in or to the Site or any content on the site is transferred to You, and all rights not expressly granted are reserved by Make Fit Happen, Inc. Any use of the site not expressly permitted by these Terms of Service is a breach of these Terms of Service and may violate copyright, trademark and other laws.

 

·       Trademarks.  The Make Fit Happen, Inc. and XUBIFIT name, logo and all related names, logos, product and service names, designs and slogans are trademarks of Make Fit Happen, Inc. You must not use such marks without the prior written permission of Make Fit Happen, Inc. All other names, logos, product and service names, designs and slogans on the Site are the trademarks of their respective owners.

 

COPYRIGHT PROTECTION

·       All content and works contained within the boundaries of the Site herein known as XUBIFIT.COM are protected under the Laws granted it by the United States Patent and Trademark Office, and this protection is strenuously enforced; meaning that any party or parties thought to have taken information, in whole or part will be prosecuted to the fullest extent of the law. If You believe any materials accessible on or from the Site infringe Your copyright, You may request removal of those materials (or access thereto) from the Site by contacting XUBIFIT and providing the following information:

o   Identification of the copyrighted work that You believe to be infringed. Please describe the work, and where possible, include a copy or the location (g., URL) of an authorized version of the work.

o   Identification of the material that You believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow Us to locate the material.

o   Your name, address, telephone number, and email address.

o   A statement that You have a good faith belief that the complained use of the materials is not authorized by the copyright owner, its agent, or the law.

 

CONSENT TO USE OF DATA AND MOBILE COMMUNICATIONS

·       In exchange for Us providing You with access to the Services, You consent to Us collecting and using technical data, personal information and related information in connection with Your use of the Services, including, but not limited to, contact information and technical information about Your device, system and application software, and peripherals, that are gathered periodically to facilitate the features and functionality of the Services and of software updates, product support and other services. You also consent to our communicating with You about the Services.

 

USE OF DOCUMENTS AND INFORMATION AVAILABLE TO YOU ON THE SITE

·       Permission to use documents [i.e. Medical Release Forms, PAR-Q Forms, Release of Liability Agreement Form, Movement Assessment Form, Press Releases, FAQs, etc.] from the Site is granted, provided that (1) the XUBIFIT Trademark and Copyright notice appears in all copies, (2) use of such documents from the XUBIFIT Website is for Your informational and non-commercial or personal use only and will not be copied or posted on any network computer or broadcast in any media, and (3) no modifications of any Documents are made.

 

·       Educational institutions (specifically K-12, universities and state community colleges) may download and reproduce the Documents for distribution in the classroom with express written permission of Make Fit Happen, Inc. Use for any other purpose is expressly prohibited by law and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Documents specified above do not include the design or layout of the Site or Apps or any other Make Fit Happen, Inc. owned, operated, licensed or controlled site(s). Elements of the Site and Apps are protected by copyright, trademark, unfair competition, and other laws and may not be copied or imitated in whole or in part. No logo, graphic, sound or image from any Make Fit Happen, Inc. Website may be copied or retransmitted unless expressly permitted by Us. You may not use any deep-link, page-scrape, spider, robot, crawl, index, Internet agent or other automatic device, program, algorithm or technology which does the same things, to use, access, copy, acquire information, generate impressions, input information, store information, search, generate searches or monitor any portion of this website. MAKE FIT HAPPEN, INC. AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON THIS SERVER FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. MAKE FIT HAPPEN, INC. AND/OR ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED ON ANY MAKE FIT HAPPEN, INC. WEBSITE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. MAKE FIT HAPPEN, INC. AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE PRODUCT(S) AND/OR THE PROGRAM(S) DESCRIBED HEREIN AT ANY TIME.

 

WARRANTIES; INDEMNIFICATION; LIMITATION OF LIABILITY; DISCLAIMER OF WARRANTIES.

·       Warranties.  The Site and the content are provided on an "as is" and "as available" basis. TO THE FULLEST EXTENT PERMITTED BY LAW, MAKE FIT HAPPEN, INC. AND ALL OF ITS AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS, SUPPLIERS, PARTNERS, EMPLOYEES, VENDORS AND EACH OF THEIR SUCCESSORS AND ASSIGNS, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. We make no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the Site(s). We cannot and do not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. We cannot and do not guarantee or warrant that files available for downloading from the Site(s) will be free of infection by viruses, worms, Trojan horses, or other codes that manifest contaminating or destructive properties. We cannot and do not guarantee or warrant that any content you post on the Site will remain on the Site. We do not warrant or guarantee that the functions or services performed on the Site(s) will be uninterrupted or error-free or that defects in the Site(s) will be corrected.  The Site(s) may include content provided by third parties, including materials provided by other users, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect Our opinion. We are not responsible, or liable to You or any third party, for the content or accuracy of any materials provided by any third parties.

 

INDEMNIFICATION

·       You shall fully protect, indemnify and defend Make Fit Happen, Inc. and all of its agents, officers, directors, shareholders, suppliers, partners, employees and each of their successors and assigns ("Indemnified Parties") and hold each of them harmless from and against any and all claims, demands, liens, damages, causes of action, liabilities of any and every nature whatsoever, including but not limited to personal injury, intellectual property infringement, fraud, deceptive advertising, violation of any state, provincial or federal laws or regulations, property damage, attorneys' fees and court costs, arising in any manner, directly or indirectly, out of or in connection with or in the course of or incidental to any of your Services or dealings with any Customers, representations, advertising, or obligations (including but not limited to your obligation to maintain the confidentiality of user personal information) as provided in this Agreement, regardless of cause or of any fault or negligence of Make Fit Happen, Inc. or the indemnified parties and without regard to cause or to any concurrent or contributing fault, string liability or negligence, whether sole, joint or concurrent, active or passive by Make Fit Happen, Inc. or the indemnified parties.

 

SUCCESSORS & ASSIGNS

·       The provisions of this Agreement shall obligate, extend to and inure to the benefit of the respective heirs, personal representatives, successors and assigns of the Parties.

 

LIMITATION OF LIABILITY

·       MAKE FIT HAPPEN, INC.’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH MAKE FIT HAPPEN, INC. IS TO DISCONTINUE YOUR USE OF THE SITE AND APP. IN NO EVENT ARE WE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST REVENUE, LOST PROFITS OR LOSS OF GOODWILL. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MAKE FIT HAPPEN, INC. TO YOU EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO MAKE FIT HAPPEN, INC. DURING THE TERM OF YOUR LAST MEMBERSHIP SUBSCRIPTION, REGARDLESS OF THE BASIS OR FORM OF CLAIM.  MAKE FIT HAPPEN, INC.’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH MAKE FIT HAPPEN, INC. IS TO DISCONTINUE YOUR USE OF THE SITE AND THE TRAINERIZE APP. MAKE FIT HAPPEN, INC. AND ALL OF ITS AGENTS, OFFICERS, DIRECTORS, SHAREHOLDERS, SUPPLIERS, PARTNERS, EMPLOYEES, VENDORS AND EACH OF THEIR SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR HEALTH-RELATED ISSUES, LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF XUBIFIT HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, XUBIFIT’S AND ITS VENDORS’ LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.  MAKE FIT HAPPEN, INC. SHALL NOT BE CONSIDERED LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES, OR NEGLIGENCE OF CONSUMERS OR FROM ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING FROM THE SERVICES PROVIDED TO THE CONSUMER BY YOU OR OTHERS.

 

DISCLAIMER OF WARRANTIES

·       YOU ACKNOWLEDGE AND AGREE THAT ANY MAKE FIT HAPPEN, INC. SITE AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND MAKE FIT HAPPEN, INC. DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

 

MISCELLANEOUS

·       Language.  This Agreement is in the English language only, which language shall be controlling in all respects, and all versions of this Agreement in any other language shall be for accommodation only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

 

WAIVER AND SEVERABILITY

·       No waiver by Make Fit Happen, Inc. of any of the terms and conditions set forth in these Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Make Fit Happen, Inc. to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.

 

MEMBERSHIP SUBSCRIPTION

·       Any payments made by You or made on Your behalf grants You limited, non-exclusive, non-transferable, non-sub-license, access to only those articles mentioned above in “WHAT WE AGREE”.  You are not allowed to any resale or commercial use of any Service; any collection and use of any listings, descriptions or pricing information; any derivative use of any Service or its content(s); any downloading, copying or other use of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools.  Your agreement does not permit You to download, install or use the App or other Services that You do not own or control.  You may not distribute or make the App or any other articles mentioned above in “WHAT WE AGREE” in any shape, form or fashion, including, but not limited to, over a network where it could be used by multiple devices independently or at the same time.  All rights not expressly granted to you are reserved and retained by Make Fit Happen, Inc.  No part of any Service(s) belonging to Make Fit Happen, Inc. may be reproduced, duplicated, copied, sold, distributed, resold or otherwise exploited for any commercial purpose without express written consent of Make Fit Happen, Inc.  You may not frame or use framing techniques to enclose any trademark, logo or other proprietary information, including, but not limited to, images, text, page layout, forms or coding belonging to Make Fit Happen, Inc. without express written consent.  You may not use meta tags or any other concealed text utilizing Make Fit Happen, Inc.’s or XUBIFIT’s name or trademarks with express written consent of Make Fit Happen, Inc.

 

Entire Agreement

o   These Terms of Service and our Privacy Policy constitute the sole and entire Agreement between You and Make Fit Happen, Inc. with respect to the Site(s) and Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site(s) and Services.  Use of the Site(s) and Services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.  Make Fit Happen, Inc.'s performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of Make Fit Happen, Inc.'s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Site, Services or information provided to or gathered by Make Fit Happen, Inc. with respect to such use. Unless otherwise specified herein, this Agreement constitutes the Entire Agreement between You and Make Fit Happen, Inc. with respect to the Site and Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and Make Fit Happen, Inc. with respect to the Site(s) and Services. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. It is the express wish to the parties that this Agreement and all related documents be drawn up in English.

 

o   Notice.  Make Fit Happen, Inc. may deliver notice to you under these Terms of Service by means of electronic mail, a general notice on the site, or by written communication delivered by first class U.S. mail or via electronic mail using information You provided at the time of registration. You may give notice to Make Fit Happen, Inc. at any time via electronic mail CustomerCare@XUBIFIT.com or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address: MAKE FIT HAPPEN, INC., 7001 Wall Triana Hwy., B142, Madison, AL 35757.  Attn: Customer Care.

 

o   Partial Invalidity.  If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.

 

o   Captions.  The subject headings and captions of the sections within the Terms of Service are included for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.

 

TERMINATION/ACCESS RESTRICTION

o   Make Fit Happen, Inc., in its sole discretion, reserves the right to suspend Your rights under this Agreement or terminate this Agreement and Your profile and/or Your membership subscription immediately at any time for any reason or no reason at all.  Further, Make Fit Happen, Inc. reserves the right, in its sole discretion, to terminate Your access to the Site(s), App and other related Services or any portion thereof at any time, without notice. If this Agreement is terminated or expires, (i) all authorizations granted to You under this Agreement shall immediately terminate, and You shall have no further right to access, use of any content in any manner. Upon any termination of this Agreement, You will no longer have access to Your profile and/or Your membership subscription and other Services.

 

o   If it is determined or suspected by Make Fit Happen, Inc. in its sole discretion that You are misusing or attempting to misuse or circumvent the Site(s), Services, system or any Customer data, or are using or attempting to use it for any inappropriate, illegal, harmful, or anti-competitive, purposes, including but not limited to activities such as hacking, infiltrating, fraud, advertising, jamming or spamming, or any activities inconsistent with the services proposed to be offered by Make Fit Happen, Inc., in addition to Our right to immediately terminate this Agreement, Make Fit Happen, Inc. reserves the right, in its sole discretion, to instigate, without notice, appropriate legal actions or proceedings to seek appropriate remedies and/or damages, including but not limited to lost revenue, repairs, legal fees, costs and expenses, and to seek injunctions or other equitable remedies. In the event of termination of this Agreement, You shall not be entitled to any refund of any fees paid to Us, including any prepayments.  Further, You will be liable for any attorneys' fees and costs if We have to take any legal action (including the retention of a lawyer) to enforce this Agreement.

 

o   Changes to Site.  Make Fit Happen, Inc. may update the content on the Site(s) from time to time, but its content is not necessarily complete or up to date. Any of the material on the Site(s) may be out of date at any given time, and Make Fit Happen, Inc. is under no obligation to update such material.  Further, the Agreement, and the Make Fit Happen, Inc. Fee Schedule, may be changed from time to time and You agree to be bound by any changes that are posted on the Site or which are otherwise communicated to You; the current applicable Agreement and Make Fit Happen, Inc. Fee Schedule is available upon request. Any modification of the Terms of Service or additional obligation You may have with this Agreement shall be binding.

 

o   TO KNOWINGLY INPUT FALSE INFORMATION, INCLUDING BUT NOT LIMITED TO NAME, PHONE NUMBER, PHYSICAL ADDRESS, E-MAIL ADDRESS, AND ANY OTHER CONTACT INFORMATION IS A VERY SERIOUS AND A FRAUDULENT MATTER THAT COULD RESULT IN SIGNIFICANT COSTS AND DAMAGES INCLUDING INVASION OF PRIVACY RIGHTS, TO MAKE FIT HAPPEN, INC. AND ITS CUSTOMERS AS WELL AS THE LOSS OF TIME, EFFORT AND EXPENSE RESPONDING TO AND PURSUING SUCH FALSE INFORMATION. FURTHERMORE, THIS ACT COULD RESULT IN REGULATORY FINES AND PENALTIES. ACCORDINGLY, IF YOU KNOWINGLY INPUT FALSE INFORMATION IN YOUR ACCOUNT(S), INCLUDING BUT NOT LIMITED TO A REAL OR FICTITIOUS PERSONS NAME, E-MAIL ADDRESS, PHYSICAL ADDRESS OR PHONE NUMBER, YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO MAKE FIT HAPPEN, INC. AND INDIVIDUALS WHO ACCEPTS YOUR INFORMATION AS TRUTH, FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $10,000 TO MAKE FIT HAPPEN, INC. AND FOR EACH OF THE ACTUAL PERSON(S) AFFECTED BY ANY OF THE IMPROPER, INCORRECT OR FRAUDULENT INFORMATION YOU ENTERED, INCLUDING, BUT NOT LIMITED TO THE ACTUAL OWNER OF THE E-MAIL ADDRESS OR PHONE NUMBER, ETC., PER IMPROPER SUBMISSION, PLUS ANY ATTORNEYS FEES COSTS AND EXPENSE RELATING THERETO, IF APPLICABLE, OR (2) THE ACTUAL DAMAGES, DIRECT, PUNITIVE AND CONSEQUENTIAL, AND ANY REGULATORY OR JUDICIAL FINES OR PENALTIES THAT MAY ARISE FROM SUCH INTENTIONAL, MISLEADING, HARMFUL AND FRAUDULENT ACTIVITY, PLUS REASONABLE LEGAL FEES, COST AND EXPENSES RELATING THERETO, WHICHEVER IS GREATER.

 

ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.

o   With the exception of  any patent, trademark or copyright claims or other intellectual property controversies arising out of, or relating to, this Terms of Service, or the making, performance or interpretation thereof, that which shall be brought in the United States District Court for the Northern District of Alabama or in the Superior or Municipal Courts of Madison County, Alabama, providing that the court selected shall have jurisdiction of the subject matter of the action and of the Parties, all other claims or controversies arising out of, or relating to, this Agreement shall be settled by arbitration in Fulton County, Georgia.  More specifically, any and all controversies, disputes, demands, counts, claims, or causes of action (including the interpretation and scope of this clause, and the arbitrability of the controversy, dispute, demand, count, claim, or cause of action) between You and Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, and successors shall exclusively be settled through binding and confidential arbitration.  Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this Agreement, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).

 

You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.

 

You and Make Fit Happen, Inc. must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR MAKE FIT HAPPEN, INC. MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by the applicable law. (d) the parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above; (e) Make Fit Happen, Inc. also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (f) each party will, upon written request of the other party, promptly provide the other with copies of all relevant documents; (g) there shall be no other discovery allowed; (h) the arbitration will be based on the submission of documents and there shall be no in-person or oral hearing; (i) the arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute; (j) The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, all of their costs and fees.  "Costs and fees" mean all reasonable pre-award expenses of the arbitration, including the arbitrators' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees; (k) the award of the arbitrator shall be accompanied by a reasoned opinion; (l) the arbitrator shall honor claims of privilege and privacy recognized at law; (m) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award.

 

Notwithstanding the foregoing, either You or Make Fit Happen, Inc. may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the county, state or federal courts located in Madison County, Alabama. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the county, state or federal courts located in Madison County, Alabama in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within Madison County, Alabama for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

 

With the exception of subparts (a) and (b) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (a) or (b) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither You nor Make Fit Happen, Inc. shall be entitled to arbitration. If for any reason a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in county, state or federal court located in Madison County, Alabama.

 

For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

 

CHOICE OF LAW

o   The Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Alabama, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction.

 

 

REVISION DATE: April 6, 2020

CAUTION :

Please consult a physician or other health care professional before beginning any diet or exercise program. Articles, blogs, recipes, videos, and any other information regarding health, fitness and nutrition is provided for educational purposes only, and not as medical advice. This information is not intended as a substitute for, nor does it replace professional advice, diagnosis, or treatment from a qualified health care professional. Results may vary, and testimonials are not claimed to represent typical results.