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, LLC ("XUBIFIT," "WE", “US" OR “OUR”) AND YOU (“YOU”, “YOUR”, “TRAINER” or “FITPRO”). 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, LLC 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” or “FITPRO” 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 provides a marketplace, and communication platform where individuals (“Consumer” or “Consumers”) seeking to improve their health through fitness related activities can locate and retain the services of Accredited/Certified Fitness Professionals in the field(s) of Resistance Training/Weightlifting/Bodybuilding, Pilates, Yoga, and Physical Therapy that are capable of delivering onsite and/or online personalized fitness programs, instruction, guidance and motivation.  XUBIFIT’s communication 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 XUBIFIT will soon provide the consumer with access to XUBI Live; a daily, on-demand, live streaming fitness training programs with Resistance Training coaches and Pilates/Yoga instructors. Additionally, XUBIFIT will 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. It should be noted that XUBIFIT is a referral service that also sells fitness packages on behalf of the FitPro, and not a referral service that sells the FitPro potential leads to potential clients that potentially waste precious time and revenues.  

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 June 1, 2018.

What We Agree.

  • With Respect to Sale Leads.
    • From the Site, Consumers will have the opportunity to purchase specific fitness packages for online training services and select a Fit Pro capable of providing said Services.  In the sales process the Consumer will also be given the opportunity to purchase a 1-ON-1 consultation as an add-on Service for the price of $99 (ninety-nine dollars and 00/100). The chosen Fit Pro must agree to perform this service either via phone, video or an in-person visit at the agreed upon price. Upon completion of the sale, XUBIFIT will send the selected Fit Pro an email correspondence notifying them of the sale.  With regards to additional services purchased outside of the XUBIFIT Website, including 1-ON-1 onsite training [studio, gym home, office, and outdoors], all such transactions by and between the Fit Pro and the Consumer shall be conducted outside of XUBIFIT.
  • With Respect to All Fitness Professionals.
    • Subject to the limitations contained in this Agreement, Your compliance with this Agreement and any payments made by You or made on Your behalf, XUBIFIT hereby grants to You, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, non-sub-license, personal license to access and make personal and non-commercial use of the Services (including updates and upgrades that replace or supplement the Services in any respect and which are not distributed with a separate license, and any documentation) on a computer, mobile device and/or smartphone that you either own or control subject to any limitations herein set forth. This license does not include, nor allow 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.  This 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 available over a network where it could be used by multiple devices independently or at the same time outside of this Agreement. All rights not expressly granted to you in this Agreement are reserved and retained by XUBIFIT. No part of any Service(s) belonging to XUBIFIT may be reproduced, duplicated, copied, sold, distributed, resold or otherwise exploited for any commercial purpose without express written consent of XUBIFIT. 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 XUBIFIT without express written consent. You may not use meta tags or any other concealed text utilizing XUBIFIT’s name or trademarks with express written consent of XUBIFIT.
    • In an effort to potentially provide more Consumers to the Fit Pros doing business with XUBIFIT, XUBIFIT will attempt to limit the number of Fit Pros displayed on the Site to no more than twenty (20) percent of all available Fit Pros in any given area, region or province. While XUBIFIT will do its best to keep the ratios of Fit Pros to ten (10) percent female, and ten (10) percent male, specific percentages are not guaranteed.
    • For the purposes of vetting the most highly qualified Fit Pros; the most skilled in their respective field of training, XUBIFIT will provide customers with the ability to rate their experience working with their respective Fit Pro via our in-house ratings & reviews surveys - - - 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, XUBIFIT 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 the agreed upon Services.
    • Fitness Professionals must maintain at least a 70 percent positive rating with XUBIFIT to be hosted on the Site.  The Fit Pro will be given 45-days in which to increase their respective positive rating to meet these guidelines, and if the Fit Pro is unable to increase their respective positive rating within this specified time, XUBIFIT will cancel the Fit Pros access to the Site on or after the 46th day.
    • Although the Fit Pro may have paid for access to XUBIFIT in advance, if the Fit Pro is unable to maintain at least a 70 percent positive rating and has failed to increase their respective rating as described herein, then the Fit Pro shall not be entitled to a refund.
    • We do not guarantee to provide the Fit Pro with a specific number of Services (sales or inquiries). 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 Customers creditworthiness, or any payments a Fit Pro or any disputes that may arise by and between a Fit Pro and a Customer.
    • Because the Customer has 10-days in which to request another Fit Pro to process and supervise their fitness needs, all payments from a sale will be delivered to the Fit Pros specified financial institution eleven (11) days after the initial sale. It is highly encouraged that all Fit Pros deliver the agreed upon service to the client expeditiously [‘welcome email’ delivered same day, ‘workout plan’ delivered within 24-48 hours] after the initial sale and provide the Customer with the appropriate support; email, video and/or Skype that the Customer initially purchased.
    • XUBIFIT is free to contract with other Fit Pros as this is not an exclusive contract.
  • With Respect to Subscription-Based Fitness Professionals.
    • In an effort to provide Fit Pros with greater success, the BIO page will only reflect the number of ‘Thumbs Up’ and not the number of ‘Thumbs Down’ the Fit Pro may have received.  NOTE: Although not displayed, Our internal database will keep track of a Fit Pros rating percentage, and the Consumer may click a link to see the specific numbers for themselves.
    • As herein mentioned, the Fit Pro must maintain at least a 70 percent positive rating with XUBIFIT, however, the Fit Pro will be given 45-days to increase your positive rating to meet these guidelines, and if the Fit Pro is unable to increase your positive rating within this specified time, XUBIFIT may choose to cancel your access to its site on or after the 46th day.
    • Although the Fit Pro may have paid for access to XUBIFIT in advance, if the Fit Pro is unable to maintain at least a 70 percent positive rating and has failed to increase their respective rating as described herein, then the Fit Pro shall not be entitled to a refund.
  • What You Agree

  • To become, and to maintain status as an Independent Contractor doing business with XUBIFIT, 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 social security number will not be retained by us, but rather destroyed immediately upon verification.
    • 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 XUBIFIT.
    • 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 XUBIFIT. You agree that Your respective role with XUBIFIT is that of an Independent Contractor and not as an employee or agent of XUBIFIT. XUBIFIT is 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 consent to the collection, use, and disclosure of personally identifiable information in accordance with the Privacy Policy
    • If You offer online training, then You agree to only use Our third-party app, herein referred to as “Trainerize” or “App”, and none other for Customers you receive from the Site.  You agree to create a Trainerize account, and You understand and agree that XUBIFIT may, at its 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.
    • You acknowledge and agree that XUBIFIT may monitor and/or record any telephone calls by and between You and XUBIFIT.
    • Depending on the Service (fitness package) the Customer purchases from XUBIFIT on Your behalf, You agree to willingly provide the Customer with the appropriate methods of contact - - - email, SMS, phone number, SKYPE, etc. - - - and remain accessible to the Customer at the agreed upon and specified times in which to provide the appropriate Services to the Customer.
    • For purposes of this Agreement, the Services provided by You to the Customer regarding the Services that were purchased from XUBIFIT on Your behalf, shall be delivered accordingly.
    • Upon registration, You are required to provide certain information regarding Your respective education, certifications and qualifications as such pertains to Your qualifications to train other individuals. This information will be displayed on Your online profile [BIO] page for the Consumer to view. As an online company, it is imperative that We do all We can do to impart confidence in the Services We provide to the Consumer. Therefore, in an effort to create ‘piece of mind’ for the Consumer, part of our vetting process requires You to provide XUBIFIT 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 and if all criteria match, then We will place a ‘verification’ badge on Your online profile [BIO] page for Consumers to view.
    • The opportunity provided to You via XUBIFIT, including the Site, Services, Apps and Goods are to be considered a privilege, and should not be considered an ownership of such.
    • While the fees for the use of the Trainerize App shall be covered by us for You and the Customer that purchased a Service (fitness package) through the Site, 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.
    • The use of the Trainerize App is provided to You as part of our Service and is subject to applicable laws. In order to provide the online Services that You have chosen to provide to the Customer, 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 the Trainerize App in which to provide Service to the Customer.  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 XUBIFIT intends 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 XUBIFIT be liable for a lack of Service. Furthermore, XUBIFIT reserves the right to change, suspend, remove, or disable access to the Services at any time without notice. In no event will XUBIFIT be liable for the removal of or disabling of access to the Services.
    • The Trainerize App is provided “as is” without warranties of any kind. XUBIFIT has no liability to You with regards thereto.
    • You shall at all times remain properly insured [general liability and professional liability insurance], and XUBIFIT shall be named as additional insured. Furthermore, You agree to be truthful with regards to having ever been denied insurance coverage related to the Services that You claimed during registration to be qualified/certified to perform. You will notify Us promptly of any such changes to Your respective insured status, and upon request will produce documentation to verify this. Upon request, the Fit Pro will provide XUBIFIT with a satisfactory certificate of insurance. 
    • We may, without further notice or warning and at Our discretion, access, use, store, and disclose the data located on the Trainerize 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 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 individual Fit Pro, You are free from any felony criminal convictions, OR that You have provided XUBIFIT with an accurate and truthful written statement detailing any exceptions. If at any time during Your term with XUBIFIT, You as an individual should have a felony conviction entered against You, You will promptly notify XUBIFIT.  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 XUBIFIT 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 an as a company that offers and provides any Service herein described, are free from any felony criminal convictions, OR that You and all others operating on Your behalf have provided XUBIFIT with an accurate and truthful written statement detailing any exceptions. If at any time during Your term with XUBIFIT, 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 XUBIFIT.  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 XUBIFIT 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 XUBIFIT resolution process - - - Section XIII: Arbitration Agreement and Jury Trial Waiver, Class Action Waiver, and Forum Selection Clause.. From time to time the terms of resolution process may be updated and remitted to You electronically via contact information You provided during registration. 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.
    • You agree, and fully understand that the fee schedules for the “Jump Start”, “Transformer” and “Champion” programs displayed on the Site are ‘preset’ to a maximum/minimum fee and that you shall not attempt to charge a Customer more or less than said stated fees. You are entitled to provide a refund amount to Your Customer after the Customer’s purchase, and during the term that the Consumer is Your Customer.  You are not permitted to increase the amount of the purchase price of a specific package purchased by a Customer after the Customer’s purchase of said package.  Prices are set to avoid pricing competition between You and other Fit Pros.  While You may not delete any service contained within a package in an effort to modify pricing, additional services may be integrated into a Customer’s package at no additional cost to the Customer. Because you are an Independent Contractor, You are permitted to charge any fee for services provided by You outside of those offered in a package as long as You and Your Customer agree to such pricing.  While not encouraged, after the terms of the original fitness package expires, You are entitled to set rates and fees for continued Services as You deem necessary.  If You provide or attempt to provide any quotes or pricing agreements to Customers outside of those displayed on the Site for the fitness packages therein described, you shall forfeit this Agreement.
    • 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 agencies 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 XUBIFIT 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 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 XUBIFIT 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. XUBIFIT reserves 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 XUBIFIT account is terminated, 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.
    • XUBIFIT reserves 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 its sole discretion) that such content contains or features any of the following:
      • 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.)
      • References to illegal activity.
      • Language that violates the standards of good taste or the standards of this Site.
      • Statements that are or appear to be false.
      • Comments that disparage XUBIFIT.
    • You agree not to engage in any illegal acts or acts of wrongdoing, dishonesty or unethical business practices with XUBIFIT, 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.
    • XUBIFIT strives to provide Consumers with the most elite Fit Pros in their respective fields, therefore, You acknowledge and agree that to knowingly share, distribute, transfer, or sell a XUBIFIT sale or lead (or the information contained therein) of any Consumer to any outside entity not vetted as 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 XUBIFIT and other Fit Pros. Responding to such a violation would also result in the loss of time, effort on the part of XUBIFIT. 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, if you knowingly share, distribute, transfer, or sell a XUBIFIT sale or lead (or the information contained therein) of any consumer to any outside entity not vetted as expressly set forth in this Agreement, you agree to fully indemnify and be liable to XUBIFIT, 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.
    • 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 level of education, experience, certifications and accreditations. This information will be used in two manners. 1) The information You provide will 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 XUBIFIT has 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 XUBIFIT has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, then XUBIFIT 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
    • 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 XUBIFIT 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 FICTICIOUS PERSONS NAME, E-MAIL ADDRESS, PHYSICAL ADDRESS OR PHONE NUMBER, YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO XUBIFIT AND INDIVIDUALS WHO ACCEPTS YOUR INFORMATION AS TRUTH, FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $10,000 TO XUBIFIT 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, WHICH EVER IS GREATER.
    • In addition to all of the other terms and conditions herein, Fit Pros using the Site and Services also agree to the following: (i) You hereby agree to automatically accept any and all Sales Leads provided to You through the Site; (ii) As a subscription member You hereby agree to pay for a quarterly, semi-annual or annual subscription fee to XUBIFIT in exchange for an online profile [BIO] page; (iii) You acknowledge and agree that not all Consumers seeking Your online profile page will be directed to Your profile page for reasons including, but not limited to (a) the Consumer's request not matching Your profile, or (b) Your account being on hold or no longer considered a member of XUBIFIT.
    • In the event You choose to participate in any promotion whereby XUBIFIT promotes an offer or discount related to Our fitness packages, or other Services, whether on the Site, via direct mail, or otherwise, You agree to abide by the terms of such offer or discount.
    • By becoming a User of XUBIFIT or enrolling in a membership or by inquiring about a membership with XUBIFIT or other XUBIFIT Services, You are requesting, and You expressly consent to being contacted by Us and by Our agents and representatives via phone, fax, email, mail or other reasonable means, at any of Your contact numbers or addresses, even if You are listed on any federal, state, provincial or other applicable "Do Not Call" list, and even if You have previously opted-out from receiving marketing emails from XUBIFIT.
    • You agree to sign up for at least two methods of sales lead notifications (for example SMS and email) and acknowledge that if You do not sign up for at least two methods of lead notification, XUBIFIT is not responsible for any delayed or undelivered leads. Furthermore, if We do not receive an acknowledgement of Your receipt of notification from us regarding a sales lead within four (4) hours we may choose to deliver the potential Customer to another Fit Pro.
    • You agree not to circumvent the any part of XUBIFIT or its Services by circumventing the Trainerize App to serve Your purpose.
    • The following is a partial list of the types of conduct that are illegal or prohibited on the XUBIFIT Website and the Trainerize Website and App. XUBIFIT reserves the right to investigate and take appropriate legal action against anyone who, in XUBIFIT’s sole discretion, engages in any of the prohibited activities on the site. XUBIFIT explicitly reserves 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:
      • You will not use the 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.
      • You will not misuse the Services or use the site in any manner which could damage, disable, overburden, or impair the XUBIFIT Site or interfere with any other party's use and enjoyment of the XUBIFIT Site.
      • You will not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the XUBIFIT Site.
      • You will not use the Services to advertise, solicit or transmit commercial advertisement, including “spam”.
      • Posting material that infringes the intellectual property rights, privacy rights, publicity rights, trade secret rights, or any other rights of any party.
      • 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). XUBIFIT takes no responsibility for monitoring such content or in evaluating it.
      • Comments that disparage XUBIFIT.
      • Posting advertisements or solicitations of business.
      • 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).
      • Posting chain letters or pyramid schemes.
      • Impersonating another person.
      • Distributing viruses or other harmful computer code which is malicious or technologically harmful.
      • Harvesting or otherwise collecting information about others, including email addresses, without their consent.
      • Allowing any other person or entity to use your identification for posting or viewing comments.
      • Posting the same note more than once or "spamming".
      • Harassing, threatening, stalking, or abusing any person.
      • Attempting to gain unauthorized access to, interfere with, damage or disrupt any parts of the XUBIFIT web site, the server on which the site is stored, or any server, computer or database connected to the site.
      • Engaging in any other conduct that restricts or inhibits any other person from using or enjoying the site, or which, in the sole discretion of XUBIFIT, exposes XUBIFIT or any of its customers or suppliers to any liability or detriment of any type.
  • Pre-Screening Procedures and Disclaimers

  • XUBIFIT uses the following criteria as part of its membership enrollment process ("registration") for new 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 XUBIFIT 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 and if all criteria match, then We will place a ‘verification’ badge on Your online profile [BIO] page for Consumers to view.
    • Criminal Records Search.  While not required, 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, XUBIFIT will either place a “background check complete” button on Your online profile [BIO] page for Consumers to view, or reserve the right to reject your application.
    • Sex Offender Search. While not required, 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, XUBIFIT will either place a “background check complete” button on Your online profile [BIO] page for Consumers to view, or reserve the right to reject your application.
  • 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 XUBIFIT applicable, non-refundable fees (“Fees”) which may include: 1) Recurring Fees: Membership/Subscription Fees, ACH Transfer/Credit Card Processing Fees, YouTube Video Hosting Fee; 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 XUBIFIT facilitating payment processing services through Stripe, You agree to provide XUBIFIT accurate and complete information about You and, if applicable, Your business, and You authorize XUBIFIT to share Your information and transaction information related to Your use of the payment processing services provided by Stripe.
    • All fees owed to XUBIFIT for Fees, Subscriptions, Services and Goods shall be billed in advance prior to You receiving the aforementioned.
    • Subscription Fees and Other Recurring Fees.
      • For all recurring membership/subscription fees, You agree to pay fees on either quarterly, semi-annually or annually, as applicable. You agree that payments will be collected by XUBIFIT initiating an ACH transfer from Your financial institution or processing of Your credit card, prior to services being applicable.
      • Membership/Subscription Fees:
        • Quarterly: $29 per month; three months paid in advance $87.00 billed quarterly.
        • Semi-Annual [25% Discount]: $21.75 per month; six months paid in advance $130.50 billed semi-annually.
        • Annual [50% Discount]: $14.50 per month; twelve months paid in advance $174.00 billed annually.
        • Featured Fitness Professional: $10.00 per month, billed monthly.
      • Credit Card Processing Fees for Fitness Packages:
        • 3% processing fee per transaction
      • YouTube Video Hosting Fees:
          If you choose to add a YouTube video to Your online profile [BIO] page, the cost for XUBIFIT to host your video is currently $0.00 per month additional to the aforementioned quarterly/annual billing.
      • Automatic Renewal of Membership/Subscription; After your initial membership /subscription period, your membership/subscription will automatically continue for an additional period (“Renewal Period”) equivalent to that chosen by You during registration until such a time that You terminate Your membership/subscription. Further, Your Renewal Period will be billed at a rate ("Renewal Price") chosen by You during registration, unless otherwise notified in advance of a change in your Renewal Price. You agree that Your account will be subject to both the Renewal Period and Renewal Price. If You want to change or terminate your membership/subscription, You may do so by contacting us by phone (256) 542-0004 [sales extension], Monday through Friday, 7 am to 5 pm CST. If You terminate Your membership/subscription, You may continue to use your membership /subscription until the end of Your then-current membership/subscription term; Your membership/subscription will not be renewed after Your then-current term expires. Further, You will not be eligible for a refund of any portion of the membership/subscription fee paid for any membership/subscription period.  You authorize XUBIFIT to charge Your provided payment method at the beginning of any Renewal Term. You also authorize XUBIFIT 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 XUBIFIT. Upon the renewal of Your membership/subscription, if XUBIFIT does 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 XUBIFIT may either terminate or suspend Your membership/subscription and continue to attempt to charge Your payment method until payment is received.
        • It should be noted that if Your account is suspended or cancelled at any time, You will no longer have access to Your Customers via XUBIFIT and the Trainerize App, and all Customers will be reassigned to another Fit Pro at either the discretion of XUBIFIT or the Customer.
      • Free Trials and Other Promotions. Any free trial or other promotion that provides a membership/subscription to the 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.
    • Background Check/Screening Fee:
      • For all recurring membership/subscription fees, You agree to pay fees on either quarterly, semi-annually or annually, as applicable. You agree that payments will be collected by XUBIFIT initiating an ACH transfer from Your financial institution or processing of Your credit card, prior to services being applicable.
      • Membership/Subscription Fees:
        • Quarterly: $29 per month; three months paid in advance $87.00 billed quarterly.
        • Semi-Annual [25% Discount]: $21.75 per month; six months paid in advance $130.50 billed semi-annually.
        • Annual [50% Discount]: $14.50 per month; twelve months paid in advance $174.00 billed annually.
        • Featured Fitness Professional: $10.00 per month, billed monthly.
      • Credit Card Processing Fees for Fitness Packages:
        • 3% processing fee per transaction
      • YouTube Video Hosting Fees:
        • If you choose to add a YouTube video to Your online profile [BIO] page, the cost for XUBIFIT to host your video is currently $0.00 per month additional to the aforementioned quarterly/annual billing.
      • Automatic Renewal of Membership/Subscription; After your initial membership /subscription period, your membership/subscription will automatically continue for an additional period (“Renewal Period”) equivalent to that chosen by You during registration until such a time that You terminate Your membership/subscription. Further, Your Renewal Period will be billed at a rate ("Renewal Price") chosen by You during registration, unless otherwise notified in advance of a change in your Renewal Price. You agree that Your account will be subject to both the Renewal Period and Renewal Price. If You want to change or terminate your membership/subscription, You may do so by contacting us by phone (256) 542-0004 [sales extension], Monday through Friday, 7 am to 5 pm CST. If You terminate Your membership/subscription, You may continue to use your membership /subscription until the end of Your then-current membership/subscription term; Your membership/subscription will not be renewed after Your then-current term expires. Further, You will not be eligible for a refund of any portion of the membership/subscription fee paid for any membership/subscription period.  You authorize XUBIFIT to charge Your provided payment method at the beginning of any Renewal Term. You also authorize XUBIFIT 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 XUBIFIT. Upon the renewal of Your membership/subscription, if XUBIFIT does 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 XUBIFIT may either terminate or suspend Your membership/subscription and continue to attempt to charge Your payment method until payment is received.
        • It should be noted that if Your account is suspended or cancelled at any time, You will no longer have access to Your Customers via XUBIFIT and the Trainerize App, and all Customers will be reassigned to another Fit Pro at either the discretion of XUBIFIT or the Customer.
      • Free Trials and Other Promotions. Any free trial or other promotion that provides a membership/subscription to the 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.
    • Background Check/Screening Fee
      • If you chose to purchase a “Background Check”, all costs required with having this service performed is solely Your responsibility to pay. As of June 1, 2018, the cost to have services below performed by Sterling Talent Solutions is a one-time charge of $39.75.
        • Social Security Trace
        • 7 Year Unlimited County Criminal Record Search
        • Enhanced National Criminal Database Search
        • Locator Select – Proprietary Incarceration Trace
        • Department of Justice 50 State Sex Offender Search
    • Merchandise/Goods Purchase Fees
      • All merchandise/goods sold by and through XUBIFIT shall be paid for in advance.
    • Miscellaneous
      • You acknowledge that it is Your sole responsibility to ensure that the information entered during the registration of Your XUBIFIT profile, including, but not limited to contact and billing information, is accurate and kept up-to-date. XUBIFIT is not responsible, or liable, for undelivered notifications. You agree to promptly notify XUBIFIT 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.
      • XUBIFIT will process Your balance due at the end of Your billing period via Your selected payment method. 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.
      • Any disputes about charges to Your account must be submitted to XUBIFIT in writing within 30 days of the date such charges are incurred. 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.
      • 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.
      • No fee is due or payable to the extent such fee is in violation of any applicable law.
      • XUBIFIT is 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.
      • You authorize XUBIFIT to charge You for any sales or similar taxes that may be imposed on Your recurring fees, or any other fees charged by XUBIFIT.
  • INTELLECTUAL PROPERTY
    • The entire contents of the Site are copyrighted as a collective work under the laws of United States and other copyright laws. XUBIFIT holds the copyright in the collective work. The collective work may include works which may be 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 XUBIFIT and all of its agents, officers, directors, shareholders, employees and each of their successors and assigns and are protected by 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 XUBIFIT. 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 XUBIFIT. 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:
      • 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.
      • 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.
      • Your name, address, telephone number, and email address.
      • 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 XUBIFIT providing You with access to the Services, You consent to XUBIFIT 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 XUBIFIT. 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 XUBIFIT 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 XUBIFIT Website may be copied or retransmitted unless expressly permitted by XUBIFIT. 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. XUBIFIT 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. XUBIFIT 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 THE XUBIFIT WEBSITE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. XUBIFIT 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, XUBIFIT 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. XUBIFIT makes no warranty as to the reliability, accuracy, timeliness, usefulness, adequacy, completeness or suitability of the Site. XUBIFIT cannot and does not warrant against human and machine errors, omissions, delays, interruptions or losses, including loss of data. XUBIFIT cannot and does not guarantee or warrant that files available for downloading from the Site will be free of infection by viruses, worms, Trojan horses, or other codes that manifest contaminating or destructive properties. XUBIFIT cannot and does not guarantee or warrant that any content you post on the Site will remain on the Site. XUBIFIT does not warrant or guarantee that the functions or services performed on the Site will be uninterrupted or error-free or that defects in the Site will be corrected. The Site 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 XUBIFIT, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of XUBIFIT. XUBIFIT is 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 XUBIFIT 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 XUBIFIT 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 XUBIFIT 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. XUBIFIT’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH XUBIFIT 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 XUBIFIT TO YOU EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO XUBIFIT DURING THE TERM OF YOUR LAST MEMBERSHIP/SUBSCRITION, REGARDLESS OF THE BASIS OR FORM OF CLAIM.  XUBIFIT’S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH XUBIFIT IS TO DISCONTINUE YOUR USE OF THE SITE AND THE TRAINERIZE APP. XUBIFIT 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. XUBIFIT 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 THE XUBIFIT SITE AND SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS, AND XUBIFIT 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 XUBIFIT 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 XUBIFIT 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.
    • Entire Agreement.  These Terms of Service and our Privacy Policy constitute the sole and entire Agreement between You and XUBIFIT with respect to the Site and Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site and Services.  Use of the Site 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.  XUBIFIT's performance of this Agreement is subject to existing laws and legal process, and nothing contained in this Agreement is in derogation of XUBIFIT'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 XUBIFIT with respect to such use. Unless otherwise specified herein, this Agreement constitutes the Entire Agreement between You and XUBIFIT 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 XUBIFIT with respect to the Site 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.
    • Notice.  XUBIFIT 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 XUBIFIT 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: Legal Department.
    • 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.
    • 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.
      • XUBIFIT, in its sole discretion, reserves the right to suspend Your rights under this Agreement or terminate this Agreement and Your membership/subscription immediately at any time for any reason or no reason at all. Further, XUBIFIT reserves the right, in its sole discretion, to terminate Your access to the Site, 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 membership/subscription and other Services.
      • If it is determined or suspected by XUBIFIT in its sole discretion that You are misusing or attempting to misuse or circumvent the Site, 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 XUBIFIT, in addition to Our right to immediately terminate this Agreement, XUBIFIT 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.
    • Changes to Site. XUBIFIT may update the content on the Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and XUBIFIT is under no obligation to update such material. Further, the Agreement, and the XUBIFIT 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 XUBIFIT 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.
  • Changes to Site. XUBIFIT may update the content on the Site from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Site may be out of date at any given time, and XUBIFIT is under no obligation to update such material. Further, the Agreement, and the XUBIFIT 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 XUBIFIT 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.
    • 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 XUBIFIT, 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 XUBIFIT must abide by the following rules: (a) ANY CLAIMS BROUGHT BY YOU OR XUBIFIT 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) XUBIFIT 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 XUBIFIT 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 state or federal courts located in Madison County, Alabama. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the 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 XUBIFIT 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 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
      • 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: June 1, 2018

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