Terms of Use

2. License Grant And Limitations

Full License. Upon payment of the appropriate license fee, subject to the terms and conditions of this Agreement, FitSync grants to you a non-exclusive, non-transferable license (i) to use the Service; and (ii) to install, execute, and use the Software.

Evaluation License. FitSync hereby grants you a limited, free-of-charge license to evaluate and test the Service and Software during the evaluation period ending fifteen (15) days, or any such period as FitSync may determine, after initial registration or download of the Software (an "Evaluation License"). With respect to an Evaluation License, notwithstanding any other provision of this Agreement, (i) the Service and Software are delivered "AS IS" and without any support, warranty or other obligation to you; and (ii) the entire risk as to the quality and suitability of the Service and Software is borne by you.

Restrictions. Except as expressly provided in this Agreement, and except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, you may not and shall not permit any person or entity to:

• copy, alter, translate, adapt, modify, reverse engineer, create derivative works of, decompile or disassemble the Software or any component of the Software;
• remove, alter or cause not to be displayed any copyright or trademark notices, license agreements, or startup messages contained in the programs or documentation.
• decrypt, extract or otherwise attempt to discover, recreate or gain access to any source code, trade secrets or confidential information contained in the Software or any component of the Software; or
• transfer, resell, sublicense, rent, lease, lend, distribute, or transmit the Software, in whole or in part or use the Software for any timesharing, outsourcing, rental or third party service bureau purposes, commercial or otherwise, except by separate written agreement with FitSync Corporation.

Fees. You are responsible for the timely payment of all fees and charges you may incur in connection with your use of the Service and Software. You will pay all taxes, duties, assessments, import and export fees and withholdings arising out of this Agreement except taxes based upon the net income of FitSync. All payments will be paid to FitSync in US Dollars or equivalent. For payments (if any) due to FitSync, FitSync may charge a late fee equal to the lesser of 1.5% per month or the maximum amount permitted by law on unpaid balances if your account becomes past due. You may also be responsible for collection costs incurred by FitSync to obtain payment from you including reasonable attorneys' fees. Payments due to third parties shall be subject to the applicable terms and conditions between you and the third parties.

You acquire absolutely no rights or licenses to the Service or the Software other than the limited right to use the Service and the Software in accordance with the terms and conditions of this Agreement. All other use is strictly prohibited.

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4. Interactive Communications Features

(a) FitSync may provide you with access to certain interactive communications features ("Features") through which you can communicate in a public forum (either in "bulletin board" formats and/or other message or communication facilities) with other Users of the Service. FitSync is not responsible for (and does not endorse, assert or stand behind the truthfulness or reliability of) any information, comments, views or advice transmitted on or through the Features. Users should always consult a physician or other qualified health care provider before relying on any information they find on any of the Features. FitSync does not regularly monitor the Features, but reserves the right to do so, in its sole and absolute discretion and with or without cause, and to edit or remove any posting or material from any of the Features and to terminate access to the Features at any time by all or any individual User.

(b) Any communication, comment or material ("Submission") that Users post on or send through Features shall be deemed to be non-confidential and non-proprietary, and by posting any Submission on Features Users represent that such Submission is their own work and creation or that it is used by the posting Users with the permission of the copyright holder, and the posting User grants (and represents and warrants the right to grant) FitSync a royalty free, perpetual, non-exclusive, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any Submissions (in whole or in part) worldwide, and/or to incorporate Submissions in other works, in any form, media or technology now known or hereafter developed. FitSync shall be free, without paying compensation of any kind, to use any ideas, concepts, know-how or techniques contained in any Submission for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products and/or services incorporating them.

(c) You are responsible for the content and substance of your activities, transactions, posts and transmissions involving the Service. This means that you, the User, are entirely responsible for all activities, transactions and content that you post, email, upload, or otherwise transmit via the Service. You shall have sole responsibility for evaluating and selecting the third parties with whom you interact using the Service (such as parties to which you send payment). You agree, and represent and warrant to FitSync, that you will not use the Features to upload, transmit, distribute or otherwise post or publish through the Features any content that: (i) is defamatory, obscene, harassing, sexually oriented, pornographic, abusive, threatening, racially, or ethnically offensive or otherwise objectionable; (ii) infringes any intellectual property or privacy right of any person or entity, including without limitation any copyright, trademarks or trade secrets; (iii) advertises or solicits the sale or purchase of any product or service or solicits for any commercial venture or any political, religious or charitable cause; (iv) includes any computer programs, code, scripts, viruses or other harmful code or programs; (v) spoofs or otherwise impersonates any person or entity, including, but not limited to, any other users or any of our personnel, or falsely state or otherwise misrepresent your identity or affiliation in any way; or (vi) violates or advocates the violation of any law or regulation, including, without limitation, any antitrust laws or regulations.

(d) Users shall promptly notify FitSync at info@fitsync.com if they have reason to believe that any User is infringing any copyrighted materials, including any copyright held by them.

(e) Your acceptance of this Agreement and/or use of the interactive Features signifies your agreement to these terms and conditions regarding use of and disclaimer of liability for such Features.

We may terminate a User's Service immediately, in our discretion, if we believe that the User's conduct fails to conform with this Section or this Agreement. Without limiting the foregoing, if you use, or attempt to use the Service for any purposes other than its intended purposes, including but not limited to tampering, hacking, modifying or otherwise corrupting the security or functionality of the Service or for posting or distributing infringing materials, your accounts will be terminated and you may also be subject to civil and criminal liability.

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6. Intellectual Property, Copyright And Trademarks

(a) The Service and the Software are proprietary to FitSync and its licensors. The Software is protected by copyright and other intellectual property laws. All right, title and interest, including all copyright and other intellectual property rights, in and to the Service, the Software, and any copies of the Software, including, without limitation, any derivative works of the Software, are owned by FitSync or its licensors. This Agreement does not convey to you title or ownership of the Software, but only a right of limited use in accordance with this Agreement. All rights not expressly granted in this Agreement are reserved to FitSync. Nothing in this Agreement shall be construed as a license to use any trademark, trade-name, design mark, logo, emblem or other distinctive mark, whether registered or not, of FitSync or its licensors (collectively, the "Marks") and you acknowledge that you acquire no right, title or interest in or to any of the Marks and you shall not in any manner represent that you have any ownership interest in the Marks or dispute or contest for any reason whatsoever, directly or indirectly, the validity of the ownership of the Marks, nor directly or indirectly attempt to dilute the value of the goodwill attached to the Marks, nor counsel anyone to do any of the foregoing during or after the termination of this Agreement. You will not remove or change any trademark, copyright or other intellectual property notices contained in the Software or any component of the Software.

(b) The content and materials included on or available via the Service are our property or the property of the respective owners/licensors, and are protected by U.S. and international copyright, trademark and other proprietary rights and intellectual property rights laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying, modification, redistribution, transmission, display, publication, performance or commercial exploitation of material from this Site or any of the Service is permitted without our express-written permission and the permission of any other applicable copyright owner. You also may not resell the content or materials included on the Service (or any part thereof). In the event of any copying, redistribution, or publication of copyrighted material as permitted by law, no changes in or deletion of author attribution, trademark, legend, or copyright notice shall be made. You may print or download printable pages of the Service for your personal use only provided that such printing or downloading is of entire pages and includes all copyright or other proprietary notices included on the original page. You acknowledge that you do not acquire any ownership rights by virtue of downloading copyrighted material from the Service. All rights not expressly granted hereunder are expressly reserved by us.

(c) The compilation of content, including postings as well as links to other Internet resources (and the descriptions of those resources), contained within or made available via this Site are our copyrighted materials. THE USE OF ANY THIRD-PARTY SOFTWARE OTHER THAN WEB BROWSERS ON OR IN CONNECTION WITH THE SERVICE, SUCH AS PRODUCTS THAT DOWNLOAD OR "SPIDER" THE FitSync WEB SITE OR ANY OF THE PAGES OF THE SITE, INFRINGES ON OUR COPYRIGHTS AND/OR THE COPYRIGHTS OF OUR LICENSORS. DO NOT USE ANY SUCH PRODUCTS ON OR IN CONNECTION WITH THE SITE OR SERVICE!

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8. Limitation on Liability

(a) IN NO EVENT SHALL FitSync (INCLUDING OUR AGENTS, EMPLOYEES, INDEPENDENT CONTRACTORS, OFFICERS, DIRECTORS, SUBSIDIARIES, PARENT AND AFFILIATED COMPANIES) BE LIABLE FOR ANY LOSS, INJURY, DAMAGES, LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE, OR INABILITY TO USE THE SERVICE AND SOFTWARE; (B)YOUR RELIANCE ON ANY CONTENT; OR (C) THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, INJURY OR DAMAGES. THIS DISCLAIMER OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION OR DELIVERY, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, PROGRAMS OR FILES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, INCLUDING, WITHOUT LIMITATION, FUNDAMENTAL BREACH OR BREACH OF A FUNDAMENTAL TERM, PRODUCT LIABILITY OR INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADE-MARK OR OTHER INTELLECTUAL PROPERTY RIGHT OR UNDER ANY OTHER LEGAL THEORY OR CAUSE OF ACTION.

(b) FitSync's AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO US IN CONNECTION WITH USE OF THE SERVICE DURING THE ONE (1) MONTH PRIOR TO THE FIRST UNDERLYING ACT GIVING RISE TO LIABILITY. IN THE EVENT THAT ANY OF THE LIMITATIONS ON LIABILITY OR REMEDIES CONTAINED HEREIN SHALL BE ADJUDGED INVALID BY A COURT OF COMPETENT JURISDICTION, IN NO EVENT SHALL FitSync's DAMAGES UNDER ANY LEGAL THEORY EXCEED THE SUM OF $100. YOU AGREE THAT THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF YOU PAY NO FEES TO US. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF FITSYNC SHALL BE LIMITED TO THE MAXIMUM EXTENT ALLOWED BY LAW.

(c) YOU UNDERSTAND AND AGREE THAT THERE ARE RISKS OF DEALING ACROSS STATE OR NATIONAL BORDERS AND WITH PERSONS ACTING UNDER FALSE PRETENSES. BECAUSE USER AUTHENTICATION ON THE INTERNET IS DIFFICULT, FitSync CANNOT AND DOES NOT CONFIRM THAT USERS ARE WHO THEY SAY THEY ARE, AND SHALL HAVE NO LIABILITY ARISING FROM OR RELATED TO YOUR INTERACTIONS WITH THIRD PARTIES. ANY CLAIMS THAT YOU MAY HAVE ARISING OUT OF OR IN CONNECTION WITH ANY THIRD PARTY CONTENT OR INTERACTION SHALL BE SOLELY BETWEEN YOU AND SUCH THIRD PARTY.

(d) FitSync shall have no liability for delays, failures or breaches due to the occurrence of any force majeure event or any other causes beyond FitSync's reasonable control, including any failure of the Internet (or any part thereof) or any link to the Internet or any telecommunications system.

(e) The limitations of liability set forth in this Section 8 will survive the expiration or termination of this Agreement.

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10. Modifications of Service and Software

(a) FitSync reserves the right, at any time and from time to time, and for a fee, to replace, modify or discontinue, temporarily or permanently, the Service and Software, with or without notice and in its sole discretion. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. You agree that FitSync shall not be liable to you for any modification, general suspension or discontinuance of any Service. FitSync may, in its sole discretion, refuse or restrict anyone from access to any or all of the Service at any time. When accepted by you, any such replacement or modified Software code or upgrade to the Software will be considered part of the Software and subject to the terms of this Agreement (unless this Agreement is superseded by a further Agreement accompanying such replacement or modified version of or upgrade to the Software).

(b) FitSync may amend, revise or supplement this Agreement at any time by posting the amended, revised or supplemental terms on the Site. Except as stated herein, changed terms shall automatically be effective after we provide you with notice of the changes, which may be provided in any reasonable manner including by posting the changes on our Site, unless the terms state otherwise or as otherwise may be required by law. Your continued use of any of the Service and Software thereafter (except to cancel your membership in the Service) will conclusively constitute your acceptance of the amended, revised or supplemented terms. Your only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of FitSync in providing the Service, including, without limitation, any changes in the content of the Service, is to terminate your continued use of the Service.

(c) This agreement, and FitSync's related operating rules, policies and other agreements governing use of particular services (all of which are incorporated herein by this reference) collectively comprise the entire agreement (the "Agreement") between you, the user, and FitSync with respect to their subject matter, and supersede all prior agreements between us regarding such subject matter. (Headings used in this Agreement are for convenience of reference only, and will not be used to interpret or construe this Agreement. The English language version of this Agreement shall control over any alternative language version hereof.

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12. General

(a) FitSync may contract with fitness facilities or other entities to which Users belong ("Fitness Facilities") that use the FitSync Service and Software regarding availability or use of personal information about Users held by the Fitness Facilities, and such Fitness Facilities or their personnel may use such information, the Service and Software in recommending specific programs, workouts or exercises for Users. FitSync and such Fitness Facilities are independent contractors and are not agents for each other, and Users agree that FitSync is not responsible for any advice or recommendations made by such Fitness Facilities or their personnel even if they use or reference information collected or available through the Service and Software, even if FitSync was negligent in collecting or providing such information, the Service and Software. Users also agree that FitSync is not responsible for the use of personal information about Users by the Fitness Facilities or their personnel.

(b) In the event that you, an individual or an individual acting on behalf of your employer, a corporation, partnership or other legal entity that will be using FitSync Professional and/or FitSync Enterprise (also referred to as Trainer, Director or Super Director accounts) ("Client"), you agree that all persons ("Users") using the FitSync Service and Software shall be required to agree to this End User Agreement as a condition to using the Service and Software. Client shall not indicate that it owns or powers the Service, in any manner, on any Web page of Client Site, whether those pages are hosted by Client or by FitSync. Under no circumstances shall any part of the Service be physically transferred to Client.

(c) This Agreement, and all other aspects of your use of the Service and Software, whether performed or entered into inside or outside of the United States, shall be governed by and construed in accordance with the laws of the State of Delaware, without regard for principles of conflict of laws and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods.

Except with respect to violations of FitSync's intellectual property or proprietary rights and FitSync's right to bring an action in court to collect monies due, and except with respect to suits brought against FitSync by third parties, you acknowledge and agree that any dispute involving FitSync shall be settled by arbitration in Washington, DC, USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. Judgment on the arbitration award may be entered into and enforced by a federal or state court of competent jurisdiction sitting in the District of Columbia, and you hereby submit to the exclusive jurisdiction of and waive any jurisdictional, venue or inconvenient forum objections to such courts. You agree that FitSync may seek interim or preliminary relief from a court of competent jurisdiction necessary to protect the rights or property of FitSync pending the completion of arbitration.

Subject to the dispute resolution terms above, any legal action or proceeding between FitSync and you related to this Agreement shall be brought exclusively in a federal or state court of competent jurisdiction sitting in the District of Columbia. If any provision of this Agreement is held by a court of competent jurisdiction or authorized arbitral body to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties consistent with applicable law with the other provisions remaining in full force and effect. FitSync's failure to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision. You and FitSync agree that any cause of action brought against FitSync arising out of or related to the Service and Software or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred and You forever waive any such cause of action. SOME JURISDICTIONS DO NOT ALLOW FOR SUCH LIMITATION PERIODS IN RESPECT OF DEMANDS FOR ARBITRATION OR ACTION. THEREFORE THE LIMITATION SPECIFIED IN PARAGRAPH 12(b) MAY NOT APPLY TO A GIVEN USER. IN SUCH JURISDICTIONS THE LIMITATION PERIOD SHALL BE LIMITED TO THE MINIMUM REQUIRED BY LAW. The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.

(d) Export Restrictions. You agree that you will not, directly or indirectly, export or transmit or permit the export or transmission of the Software or related documentation and technical data to any country to which such export or transmission is restricted by any applicable law or regulation. You agree to indemnify, defend and hold harmless FitSync, its officers, directors and employees, from and against any losses, damages and expenses (including attorneys' fees) arising out of or relating to any claims that you or your End Users have, directly or indirectly, exported or transmitted the Software in violation of any applicable export restrictions.

(e) You may not assign (directly or by operation of law, e.g. by merger) or otherwise transfer any right or obligation set forth in this Agreement without FitSync's prior written consent. Any purported assignment in violation of the preceding sentence will be null and void. This Agreement will be binding upon the parties and their respective successors and permitted assigns. For purposes of this Agreement a merger, sale or other change in control shall be deemed to be an assignment.

(f) You and FitSync are independent contractors, and no agency, partnership, joint venture, or employee-employer/franchiser-franchisee relationship is intended or created by this Agreement.

(g) Any notice or other communication required or permitted to be made or given by either party pursuant to this Agreement will be in writing, in English. FitSync may deliver notice to you under this Agreement by means of electronic mail, a general notice on the FitSync web site or any of the Service, or by written communication delivered by first class U.S. Mail to your address on record in FitSync's account information. If you have any questions, suggestions or complaints about the Site or this Agreement, you may contact FitSync anytime at info@fitsync.com.

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