MAKE FIT HAPPEN, INC.
TERMS OF SERVICE
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” OR “USER”). 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" or "user" 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
At Make Fit Happen, Inc. we are 100% committed to making your experience on our site a positive one. Our website, XUBIFIT.com provides a marketplace, and communication platform where individuals (“You” or “User”) seeking to improve their health through fitness related activities can locate, gain access to, and retain the services of an Accredited/Certified Fitness Professional (“Fitness Professional” or “Trainer”) in the fields of Resistance Training/Weightlifting/Bodybuilding, Pilates, Yoga, Physical Therapy and other specializations that are capable of delivering onsite and/or online personalized fitness/exercise programs and motivation. And while our company is continually expanding into new areas of fitness, currently the Service we are providing to you is our Fitness Professional referral service. This Service is provided to you, free of charge for the express purpose of assisting you in locating, gaining access to, and retaining the services of a Fitness Professional. Additionally, the Site is intended to provide you with fitness packages which you can purchase from the Site on behalf of the Trainer for the specific purpose of engaging with a Fitness Professional for online health and fitness instruction and motivation.TERMS
The following terms and conditions govern your access to and the use of our Website, Apps, Services and Goods. Our Website, 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 ("Terms and Conditions") constitute a legally binding Agreement between the user (“You”, “Your” or “User”), and Make Fit Happen, Inc. ("We", "Us", “Our” or " XUBIFIT"). Your use of this Website or downloading, accessing, installing or using our mobile 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 & Conditions were last updated on January 4, 2021.REGISTRATION
While registration is not necessary to use free areas within the site, such as our BLOG pages, registration may be required in certain areas and features of the Services such as to receive health, fitness and wellness services (“Services”) provided by the Trainer. If you register, you agree to (i) provide accurate, current and complete information about you as may be prompted by any signup, login and/or registration forms made available via the Services (the "Registration Data"); (ii) maintain and promptly update the Registration Data, and any other information you provide to us, in order to keep it accurate, current and complete; and (iii) accept all risk of unauthorized access to the Registration Data and any other information you provide to us.
We are under no obligation to retain a record of your account or any data or information that you may have stored by means of your account or your use of the Services. You are only authorized to create and use one account for the Services and are prohibited from using alter egos or other disguised identities when using the Services. You are under no obligation to use or continue to use the Services and may stop using the Services without notifying us.RELATIONSHIP BETWEEN PARTIES
Fitness Professionals act as Independent Contractors and not as agents or employees of Make Fit Happen, Inc. The relationship between Us and Fitness Professionals is such that neither Party shall have 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. Because Fitness Professionals will always be regarded herein as independent contractors, We have no obligation to You.NO GUARANTEES OR ENDORSEMENTS
Although we take certain steps to examine the credentials of the Fitness Professionals listed on our website, we make no guarantees, warranties or representations regarding the quality of services they are capable of performing or their accomplished skills. To be clear, We do not independently verify representations a Fitness Professionals has made regarding their services, nor validate any reviews. It is entirely up to you to evaluate any Fitness Professional including, but not limited to a Fitness Professional's qualifications before choosing a Fitness Professional to provide services. We are not liable for the acts, errors, omissions, representations, warranties, breaches, or negligence of Fitness Professionals or from any personal injury, death, property damage, or other damages or expenses resulting from the services provided by them to you or others.
Some of the steps we take to help provide ‘piece of mind’ to you, the consumer, is through our 3-step authentication process.
Because online training requires the use of an electronic device such as a computer, tablet or smartphone to engage in the Services you may have purchased, you hereby acknowledge and agree that your use of the Site and Services shall also be in accordance with the usage rules established by your mobile device platform or service provider.USAGE GUIDELINES
The Services are being offered exclusively to You for Your personal use. You agree to use the Services for personal use and that you shall not resale any training or nutritional Services that were designed specifically for you to other parties. To resale or attempt to resale is prohibited, and is grounds for, among other things, cancellation of Services being provided to you by the Trainer. NOTE: if your Service is cancelled due to your actions, you will remain obligated to pay for any and all Services previously agreed to.PURCHASING PROGRAMS FROM A FITNESS PROFESSIONAL
All services provided to you by a fitness professional, is solely between you and said fitness professional.RISKS OF USE
The content on Our Site is not a substitute for direct, personal, professional medical care and diagnosis. None of the information provided herein, including, but not limited to exercise program's and nutritional information should be executed, utilized or otherwise undertaken without your physician’s and/or health care provider’s consent and approval. The information contained herein is not intended to provide unequivocal physical, nutritional or any other such advice to any entity [individual or business] and should not be relied upon in that regard. Make Fit Happen, Inc. is not a medical facility, nor should any of its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers, be considered medical or health care professionals. Furthermore, nothing on this Site or otherwise provided to you should be misconstrued to indicate otherwise.
Make Fit Happen, Inc. does not recommend or endorse any specific test, products, or procedures that may be mentioned either on the Site or provided/suggested to you by Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers. Any such opinions expressed are the opinions of the authors, Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers. Make Fit Happen, Inc. does not assume any liability for the contents of any material, specific test, products, or procedures that you receive from the Site or provided/suggested to you by Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers nor assume any liability or responsibility for damage or injury to persons or property arising from any use of any product, information, idea, or instruction contained on the Site or provided/suggested to you by Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers.
There may be risks associated with participating in physical activities and dietary undertakings either mentioned on the Site or provided to you by Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers. As with any exercise program you assume certain risks to your health and safety. It should be noted that engaging in any form of exercise program can cause injuries, and XUBIFIT nor its officers, directors, employees, agents, trainers, and affiliates make claims otherwise. If you choose to participate in these risks, you do so of your own free will and accord, knowingly and voluntarily assuming all risks associated with such physical and dietary activities. These risks can be associated for those in poor health, those having pre-existing mental and physical ailment and for those currently in good health.
To recap, TRAINERS ARE INDEPENDENT CONTRACTORS AND NOT AGENTS OR EMPLOYEES OF XUBIFIT. MAKE FIT HAPPEN, INC. IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF SERVICE PROVIDERS OR FROM ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. You are encouraged to consult with your physician and/or health care provider
before beginning any dietary undertakings or exercise programs. When engaging in any plans, program's, workout's and coaching you are doing so at your own risk and neither Make Fit Happen, Inc. nor its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers shall be held responsible for any injuries, health problems or even death that result from using the aforementioned.GENERALLY EXPECTED RESULTS FROM MAKE FIT HAPPEN, INC.
At Make Fit Happen, Inc., we always encourage individuals to live a healthier life by eating healthy and remaining active. However, we do want to set reasonable expectations. It is a scientific fact that everyone’s body works differently, and therefore individual results will vary. Weight loss, weight gain, muscle loss and muscle gain are no exception as they are impacted by many factors, including age, gender, metabolic rate, level of activity and state of health. With that in mind, best results are commonly attained when you, the user, attentively adheres to the instructional advice, written or verbal, provided to you via Make Fit Happen, Inc., its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers. However, it must be noted that even when consumers attentively adhere to the instructional advice and implement any products or services suggested it is still possible they may not get the results they may have expected, and it is also possible they may not lose fat or gain muscle or achieve any positive results of any kind.
The transformations, and testimonials on the XUBIFIT Site are authentic. It must be noted however that such transformations are not to be considered declarations denoting typical results. These testimonials are merely a platform to showcase those who’ve overcome adversity and gone on to achieve exceptional results. Again, because everyone’s body works differently, the end results you get will depend upon some, if not all of the aforementioned factors, and the amount of effort you put into your program.DISPUTES
Should you have any dispute with the Services provided by Your specifically chosen Fitness Professional it is Your sole responsibility to contact the Fitness Professional and resolve said dispute. However, if your dispute is regarding the amount of money that you paid for the “exact” Services purchased through the Site, and an amount that the Fitness Professional claims should be different than your purchase agreement then please advise us immediately.DISPUTE RESOLUTION ASSISTANCE
At Make Fit Happen, Inc., we cannot and do not guarantee the quality of service provided by any Fitness Professional listed on the Site. Furthermore, while we have no obligation to the Fitness Professional or to You as the Fitness Professionals client/customer. We do however reserve the right to try and assist you in resolving any disputes that may arise from a Service purchased on the Site and a Fitness Professional who you learned about through our Service. It should be noted that without modifying our statements under this Agreement, we may, upon Your request, provide limited assistance in resolving disputes between You and a Fitness Professional. Such limited assistance in no way nullifies the release and indemnification described in these Terms of Service. Make Fit Happen, Inc. will not provide you with a monetary refund itself.USAGE OF APP
Your use of the Services through our third-party app [Trainerize] provided to you as part of our Service is subject to applicable laws. In order to engage in the Services provided to you, it is your 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 Service(s). You are solely responsible for any fee(s), cost or expense that 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 Make Fit Happen, Inc. 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 We be liable for a lack of Service. Furthermore, Make Fit Happen, Inc. reserves 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 disable of access to the Services.INFORMATION YOU PROVIDE TO XUBIFIT
Upon using the XUBIFIT site and the Trainerize App, you will be prompted to disclose certain information about yourself, including, but not limited to fitness specific information on the Trainerize App where your Fitness Professional can use such information to design your personal fitness and nutritional plan and respond to and communicate with you within the guidelines of the App. By providing this information you are requesting, and you expressly consent to being contacted by us and by a Fitness Professionals via Telephone, Email, SMS Messaging, Video and SKYPE, or other reasonable means; even if any of your contact numbers or addresses, even if you are listed on any federal, state, provincial or other applicable "Do Not Call" list, in order that we may provide the Services set forth on our site, to service your account, to reasonably address matters pertaining to your account, including but not limited to notifying you of, or confirming, appointments that you have scheduled, or for other purposes reasonably related to the Services you purchased or marketing related materials notifying you of other available or upcoming Services. You agree that by purchasing a Service or Services from the XUBIFIT Website, you are entering into a business relationship with XUBIFIT and/or a Fitness Professional and thus agree to be contacted by Make Fit Happen, Inc. and/or a Fitness Professional. You promise that all information you provide (including but not limited to your contact information, and any Ratings of Fitness Professionals that you provide) 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 our Services by persons to whom you intentionally or negligently allow access to your password.
TO KNOWINGLY INPUT FALSE INFORMATION, INCLUDING BUT NOT LIMITED TO NAME, PHONE NUMBER, ADDRESS OR E-MAIL ADDRESS IS A VERY SERIOUS AND FRAUDULENT MATTER THAT COULD RESULT IN SIGNIFICANT COSTS AND DAMAGES INCLUDING INVASION OF PRIVACY RIGHTS, TO XUBIFIT AND THE FITNESS PROFESSIONALS, AS WELL AS THE LOSS OF TIME, EFFORT AND EXPENSE RESPONDING TO AND PURSUING SUCH FALSE INFORMATION AND REQUEST, AND FURTHER, COULD RESULT IN REGULATORY FINES AND PENALTIES. ACCORDINGLY, IF YOU KNOWINGLY INPUT FALSE INFORMATION IN YOUR PURCHASE OF A SERVICE OR SERVICES, INCLUDING BUT NOT LIMITED TO SOME ONE ELSE'S NAME, E-MAIL ADDRESS, PHYSICAL ADDRESS OR PHONE NUMBER OR A RANDOM OR MADE UP NAME, ADDRESS, E-MAIL OR PHONE NUMBER YOU AGREE TO FULLY INDEMNIFY AND BE LIABLE TO XUBIFIT AND EACH FITNESS PROFESSIONAL WHO ACCEPTS SUCH A PURCHASE REQUEST(S), FOR THE GREATER OF: (1) A MINIMUM AMOUNT OF $10,000 TO EACH OF XUBIFIT AND EACH OF THE AFFECTED FITNESS PROFESSIONALS AND FOR EACH OF THE ACTUAL PERSON(S) AFFECTED BY ANY OF THE IMPROPER, INCORRECT OR FRAUDULENT INFORMATION YOU ENTERED (FOR EXAMPLE 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.
If you provide written comments or testimonials about our Website, Services, Fitness Professionals or such information, 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 our website or in marketing materials including your name and company or agency, and that you shall not be entitled to any payments associated with our use of the foregoing. You hereby authorize us to use your name (company name, and franchise name if 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 have 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 XUBIFIT website, and on any other websites owned or operated by XUBIFIT. 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 moral rights that you may have in any Content posted or provided by you.. LICENSE TO USE
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.CONTENT POSTED BY OTHERS
XUBIFIT is not responsible for, and does not endorse, content in any posting made by others on the XUBIFIT Site. You are solely responsible for your reliance on anything posted by others on the sites. Under no circumstances will XUBIFIT nor its officers, directors, employees, agents, assigns, successors, trainers, affiliates, licensors, and suppliers be held liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you or any third party in connection with the use of or reliance of any content posted by a third party on the Site.
If you feel threatened or believe someone else is in danger, you should contact your local law enforcement agency immediately. XUBIFIT has the right to remove any user contributions from the site for any or no reason. XUBIFIT reserves the right to take necessary legal action against users.LINKS TO THIRD PARTY SITES
The XUBIFIT Site may contain links to other web sites ("Linked Sites") and resources provided by third parties. This includes links contained in advertisements, including banner advertisements and sponsored links. The Linked Sites are not under the control of XUBIFIT, and XUBIFIT is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. XUBIFIT is not responsible for webcasting or any other form of transmission received from any Linked Site. XUBIFIT is providing these links to you only as a convenience, and the inclusion of any link does not imply an endorsement by XUBIFIT of the site or any association with its operators. XUBIFIT has no control over the contents of the Linked Sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.NO UNLAWFUL OR PROHIBITED USE - - - ACTIVITIES PROHIBITED ON THE SITES
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:
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 XUBIFIT name, logo and all related names, logos, product and service names, designs and slogans are trademarks of XUBIFIT and its parent company 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 this 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 this site by contacting XUBIFIT and providing the following information:
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.INFORMATION ABOUT YOU AND YOUR VISITS TO THE SITE
To facilitate payment for Services and Goods you purchase from XUBIFIT, You authorize Us and the payment processing service(s) (Company or Company’s) retained by us (currently, Stripe and PayPal) to facilitate the transaction of the agreed upon fees and applicable charges you selected at the time of purchase. All payments transacted through the Company’s shall be subject to each specific Company’s terms and conditions. By agreeing to this Agreement, You agree to be bound by the Company’s Agreement as well. As a condition of XUBIFIT facilitating payment processing services through these Company’s, You agree to provide XUBIFIT accurate and complete information about You and, if applicable, Your business, and You authorize XUBIFIT to share transactional information related to Your use of the payment processing services provided by the Company’s.
Any fees for Services and Goods charged to You by XUBIFIT are due prior to Services and Goods being available or delivered. When You make a purchase for any of the Services and Goods on the XUBIFIT Website, You are representing the following: (i) any credit information You supply is true and complete; (ii) charges incurred by You will be honored by your financial institution, credit card issuer or other provider, (iii) You will pay the entire charge, rates include applicable duties, taxes, levies and fees (including sales tax, use or withholding taxes) imposed on in conjunction with this Agreement by any authority for Services and Goods You chose during the checkout process, and (iv) if you chose to cancel Your Agreement and thereby cause a chargeback fee to be incurred by XUBIFT, You agree, without protest to pay a chargeback fee of $20.00 directly to XUBIFIT.INTENTIONALLY GREYED OUT - - - NOT APPLICABLE AT THIS TIME
If you sign up for XUBI LIVE, a paid subscription Service (“Subscription”), we will charge your financial institution, credit card issuer or other provider for your first fee on the date we process the order for your Subscription.
If you sign up for a XUBIFIT Supplementation Subscription, we will charge your financial institution, credit card issuer or other provider for your first fee on the date we process the order for your Subscription.
prior to the Subscription anniversary date [the date that you were originally charged] of the next month. Your Subscription will automatically renew each month until such a time that you cancel your Subscription. If you sign up for a Subscription that includes a free trial period, you must cancel your membership prior to the expiration of the free trial period, otherwise your Subscription will begin, and automatically renew each month until such a time that you cancel your Subscription. Failure to cancel your Subscription prior to the next month’s anniversary date will result in another month’s fees; fees will not be refunded in whole or part. We will charge your financial institution, credit card issuer or other provider with applicable renewal fees and any taxes that may be imposed on such fee payments. You may cancel your subscription by contacting XUBIFIT’s Customer Care Department at CustomerCare@Xubifit.com.LEGAL DISCLAIMERS 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 WARRANTY
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.CHANGES TO THE 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.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.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
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.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.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.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.ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE
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.28. 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: January 4, 2021
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