1. How to Use our Service
The service is available to both trainers and clients, so that they may advertise and schedule sessions. To enjoy the service, trainers must develop a profile and input their locations and availability into the scheduling software. This will allow clients to select times that meet the trainer’s availability. The clients may then register on the Site, and begin to research trainers in their area. Then, the client may schedule appointments with the trainer of his or her choice.
2. Registering on the Site
Both clients and trainers must register with the Site, in order to enjoy the service that FitnessTrainer is offering. To register, clients and trainers must provide their full name, state of residence, zip code, phone number, date of birth, email address, and create a password. Trainers may also upload photos and create bios that provide information about their experience and location.
You agree that any information that you supply during the registration process will be accurate, truthful, and complete. You also agree not to (i) select, register, or attempt to register, or use a name of another person with the intention of impersonating that person; (ii) use a name of anyone else without authorization; or (iii) use any content, names, data, or other information that is in violation of the intellectual property rights of any person or that FitnessTrainer considers to be offensive or adverse to the spirit and purpose of the Site. FitnessTrainer reserves the right to reject or terminate any registration that, in its judgment, it deems offensive or otherwise in violation of this Agreement.
You will be responsible for preserving the confidentiality of your password and will notify FitnessTrainer of any known or suspected unauthorized use of your account. Further, you agree that you are responsible for all statements made and acts or omissions that occur on your account while your password is being used. If you believe someone has used your password or account without your authorization, you must notify FitnessTrainer immediately. FitnessTrainer reserves the right to access and disclose any information including, without limitation, user names of accounts and other information to comply with applicable laws and lawful government requests. You must be at least 13 years old to register on the Site.
Please inform FitnessTrainer if there is a change in the information you provided at the time of your initial registration, including any change of address or name, by contacting our representatives at [email protected].
3. Proprietary Rights to Content
All materials contained on the Site are protected by copyright law except where explicitly noted otherwise. FitnessTrainer reserves all rights in this content.
You acknowledge and agree that content, including but not limited to text, software, photographs, video, design, recordings, music, graphics, or other material contained on the Site (the “Content”) is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and applicable law. You agree not to copy, reproduce, distribute, or create derivative works from the Content or otherwise use, transmit, rebroadcast, publish, or distribute the Content in any form other than as expressly authorized by this Agreement without FitnessTrainers’ prior written consent. You understand and agree that you are permitted to make one copy of the Content for personal use only, provided you:
- Keep all copyright and other proprietary notices on each copy you make
- Use the material in a manner consistent with this Agreement
- Understand that we are neither transferring ownership of the materials directly or by implication, nor granting any license or right to the trademarks, tradenames, or copyrights of any party
Using any of our materials for a commercial purpose without our express written consent-violates our copyrights and other proprietary rights.
You may not use any data mining, robots, scraping, or similar data gathering and extraction tools on the Content, frame or scrape data from any portion of the Site or Content, or reproduce, reprint, copy, store, publicly display, broadcast, transmit, modify, translate, publish, sublicense, assign, transfer, sell, loan, or otherwise distribute the Content without our prior written consent. You may not circumvent any mechanisms included in the Content for preventing the unauthorized reproduction or distribution of the Content. You also are prohibited from taking any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure. Finally, you may not utilize any device, software, or routine that will interfere or attempt to interfere with the functionality of the Site.
4. User Conduct
You agree that all the information that you access on the Site will be used only for your own personal purposes. You will not make any other unauthorized use of the Site or any interactive features available on the Site or otherwise act in a manner that is disruptive to the purpose and intent of the Site. You may not engage in any conduct or action that is prohibited by any applicable law.
6. No Show Policy
FitnessTrainer is committed to providing effective scheduling services to both clients and trainers. We understand, however, that a situation may arise where either a client or trainer is forced to cancel an appointment. If such a situation arises, we ask that you cancel your reservation online and/or call the client/trainer directly.
If a client is unable to make a session and fails to cancel at least forty-eight hours prior to the scheduled session, the client will be charged for the session. FitnessTrainer will send that client an email letting him or her know that we have listed him or her as a no-show for the relevant session. A client’s account will be terminated if he or she is a no-show for three sessions within the same six-month period.
If a trainer is unable to make a session and fails to cancel at least forty-eight hours prior to the scheduled session, the trainer will be required to reschedule the appointment with the client. FitnessTrainer will send that trainer an email letting him or her know that we have listed him or her as a no-show for the relevant session reservation. A trainer’s account will be terminated if he or she is a no-show for three sessions within the same six-month period.
You agree that all final no-show determination will be made by FitnessTrainer in its sole discretion.
You acknowledge that training can be dangerous. The facilities at which a sessions takes place may contain hazards that could result in your injury or death or damage to your property. The equipment used at a session could cause your injury or death or damage to your property. Your client or trainer could cause your injury or death or damage to your property. You assume all risk of injury, death, and property damage related to all sessions scheduled through the Site. FitnessTrainer does not inspect or maintain any facilities at which any lesson takes place, does not provide any equipment used at any session, and is not responsible for the behavior of any client or trainer. By scheduling a session, you are agreeing that FitnessTrainer has no liability whatsoever for any injury, death, or property damage suffered by you in connection with such session.
8. Corporate Identification and Trademarks
All registered and unregistered trademarks and service marks (collectively, “Marks”) used or referred to on the Site are the property of FitnessTrainer or its affiliate, unless otherwise noted. You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify these Marks in any way without FitnessTrainers’ prior written permission. The use of FitnessTrainers’ Marks on any other web site, without authorization, is prohibited.
9. Public Areas of the Site; IP Warranty and Grant
We do not claim ownership in any Content (as defined above) that you may post. However, by submitting such Content to public areas of the Site, you hereby warrant that you own the appropriate rights in the Content, so as not to violate any third party’s intellectual property or proprietary rights. Further, you grant to FitnessTrainer a worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such Content, including any message or any e-mail sent by you to us or posted on the Site (in whole or in part), and/or to incorporate it in other works in any form, media, or technology now known or later developed without the need to attributed authorship.
To be clear, you understand and agree that you may not upload, post, or otherwise make available on the Site any Content protected by copyright, trademark, or other proprietary right without the express permission of the owner of the copyright, trademark, or other proprietary right. You are responsible for determining that such material is not protected by copyright, trademark, or other proprietary right. You shall be solely liable for any damages resulting from any infringement of copyright, trademark, or other proprietary right, or any other harm resulting from any uploading, posting or submission.
10. Prohibited Conduct
By using the Site you agree not to submit, post, or transmit any content or otherwise to engage in any conduct, that violates any of the following rules:
- You may not attempt to harm, disrupt, or otherwise engage in activity that impairs, the Site.
- You may not post any content on the Site that (a) violates or encourages others to violate any applicable law or regulation, or which would give rise to civil liability; (b) is fraudulent, false, misleading, or deceptive; (c) is defamatory, pornographic, obscene, vulgar, or offensive; (d) promotes bigotry, racism, hatred, harassment, or harm against any individual or group; or (e) is abusive or threatening.
- You may not attempt to interfere with any other person’s use of the Site or the services offered on the Site.
- You may not misrepresent your identity or impersonate any person.
- You may not access, descramble, deactivate, remove, impair bypass, or circumvent any technological measure that we, our partners, or a third party have implemented to protect the Site.
- You may not attempt to gain access to any account, computers or networks related to or used in connection with the Site, without authorization, or otherwise tamper with any aspect of the Site, or use any robot, spider, data mining tool, web tool, engine, software, device, or mechanism to access data on the Site, unless we provided you with such tool and authorized you to use it for the specific purpose(s) in which you have used it
- You may not attempt to obtain any data through any means from the Site, except if we intend to provide or make it available to you.
- You may not use the Site to participate in pyramid schemes or chain letters.
- You may not use the Site to send, either directly or indirectly, any unsolicited bulk email or communications or unsolicited commercial email or communications.
- You may not use the Site to post, display, send or otherwise make available or use, any material protected by intellectual property laws unless you own or control all necessary rights to such material or have received all necessary authorization.
- You may not use the Site to send or otherwise make available any material that contains viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of any computer or property.
- You may not use the Site to download any material sent by another user of the Site that you know, or reasonably should know, cannot be legally distributed in such manner.
- You may not use the Site in a manner that violates this Agreement, or any code of conduct or other guidelines which may be applicable to the Site.
- You may not use the Site to harvest or otherwise collect information about others, including without limitation email addresses.
- You may not attempt to modify, translate, adapt, edit, copy, decompile, disassemble, or reverse engineer any software used or provided by us in connection with the Site.
- You may not use the Site in a manner that results in excessive bandwidth usage, as determined solely by us.
We have the right to make all judgments concerning any of the above prohibitions in our sole, exclusive, and complete discretion. We reserve the right, also in our sole discretion, to determine whether and what action to take in response to any violation or potential violation of this Agreement, and any action or inaction in a particular instance shall not dictate or limit our response to a future complaint or situation.
11. Right to Terminate
We may, in our sole discretion, terminate the registration of any user or trainer who violates the terms of this Agreement.
In the event of a breach of this Agreement, FitnessTrainer may terminate your ability to use the Site and prohibit you from any future access of the Site. FitnessTrainer reserves the right to take any further action, as allowed by applicable law.
13. Links to Third Party Sites
At times, the Site may contain links to third-party web sites, which are not under the control of FitnessTrainer. FitnessTrainer makes no representations whatsoever about any other web site to which you may have access through the Site. When you access another web site, you do so at your own risk and acknowledge that FitnessTrainer is not responsible or liable for any content, advertising, services, products, or other materials available from such third party web sites. You also agree that FitnessTrainer shall not be liable for any loss or damage of any sort incurred as the result of using any third party’s web site. Mention of third-party companies and web sites on the Site is for informational purposes only and does not constitute an endorsement or recommendation.
14. Email Policy
You may receive periodic emails from FitnessTrainer. If you would rather not receive email from FitnessTrainer, please send an email to [email protected] and you will be unsubscribed from receiving further mailings. You acknowledge and agree, however, that you will still receive sesssion confirmation emails, no-show confirmation emails, session change confirmation emails, session cancellation confirmation emails, and other emails relating to any sessions that are booked through the Site, even if you have opted not to receive periodic email from FitnessTrainer.
15. Limitation of Liability
IN NO EVENT SHALL FITNESSTRAINER BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR DAMAGES (INCLUDING INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES) OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, WHICH ARISES OUT OF OR IS ANY WAY CONNECTED WITH (I) ANY USE OF THE SERVICES, THE SITE, OR ITS CONTENT, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE ANY COMPONENT OF THE SERVICES OR THE SITE FOR SCHEDULING PURPOSES), OR (III) THE PERFORMANCE OR NON-PERFORMANCE OF ANY TRAINER OR CLIENT IN CONNECTION WITH THE SERVICES, EVEN IF FITNESSTRAINER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16. Disclaimer of Warranties
FitnessTrainer makes no warranty that the Site will be uninterrupted, timely, secure, or error free. FitnessTrainer makes no warranty as to the accuracy of the information on the Site.
UNLESS EXPRESSLY STATED OTHERWISE, FITNESSTRAINER PROVIDES THE CONTENT ON THE SITE “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY, AND FITNESS FOR A PARTICULAR PURPOSE.
You agree to indemnify, defend, and hold harmless FitnessTrainer, its officers, directors, employees, agents, affiliates, distributors, and licensees from and against any judgment, losses, deficiencies, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with or arising from any claim, demand, suit, action, or proceeding arising out of any breach of this Agreement by you or in connection with your use of the Site or any service (or product) related thereto.
18. Right to Modify or Change
FitnessTrainer reserves the right to modify this Agreement periodically at its sole discretion. When it makes any modification to this Agreement, it will update the date referenced at the end of this page. Your continued use of the Site constitutes acceptance of the terms and conditions stated at the time of use.
19. Governing Law
This Agreement and the relationship between FitnessTrainer and you shall be governed by and construed in accordance with the laws of the State of Delaware. Any controversy or claim arising out of or relating to this Agreement or relating to use of this web site and the material contained in this web site shall be resolved in a court in the State of Texas.
20. Electronic Signature
The waiver by either party of a breach or right under this Agreement will not constitute a waiver of any subsequent breach or right. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.