Terms of Service
Welcome, and thank you for your interest in The Next Fitness Thing, Inc. (“TNFT, “we,” “our,” or “us”) and our website at www.thenextfitnessthing.com, www.tnft.ai, along with our related websites, hosted applications, mobile or other downloadable applications, and other services provided by us and our partners (collectively, the “Service”). These Terms of Service are a legally binding contract between you and The Next Fitness Thing regarding your use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY
BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING THE NEXT FITNESS THING’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND THE NEXT FITNESS THING’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY THE NEXT FITNESS THING AND BY YOU TO BE BOUND BY THESE TERMS.
NO MEDICAL ADVICE DISCLAIMER: DO NOT USE THE SITE FOR MEDICAL SERVICES. IN THE EVENT OF AN EMERGENCY, DIAL 911, YOUR LOCAL EMERGENCY ASSISTANCE NUMBER, AND/OR YOUR PERSONAL PHYSICIAN. THIS SITE IS INTENDED TO PROVIDE OUR USERS WITH EDUCATIONAL INFORMATION ONLY AND IS ONLY PROVIDED AS A CONVENIENCE, NOT AS A VALID RESOURCE FOR INFORMATION OR CONTACT OR COMMUNICATION WITH A MEDICAL PROFESSIONAL. IF YOU EXPERIENCE ANY PAIN OR EXACERBATION OR HAVE A CHANGE IN MEDICAL CONDITION, YOU SHOULD IMMEDIATELY SEEK APPROPRIATE MEDICAL ATTENTION. YOU ACKNOWLEDGE AND AGREE THAT THE NEXT FITNESS THING IS NOT AND WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGES CAUSED BY YOUR USE AND/OR RELIANCE ON THE SITE OR ANY INFORMATION OBTAINED OR ACCESSED THROUGH THE SITE.
ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 17, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND THE NEXT FITNESS THING ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (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. (SEE SECTION 17.)
SERVICE PROVIDERS’ NOTICE. If you are an healthcare professional, clinic, organization or other authorized service provider (“Service Provider”), you may create a personalized professional profile, subject to these Terms in addition to the Independent Service Provider Terms and Conditions available here.
INFORMATION PURPOSES ONLY. ANY AND ALL CONTENT OF THE NEXT FITNESS THING IS INTENDED FOR GENERAL INFORMATIONAL PURPOSES ONLY. THE NEXT FITNESS THING DOES NOT GUARANTEE OR REPRESENT THAT ALL CONTENT IS ACCURATE, COMPLETE, OR RELIABLE. THE NEXT FITNESS THING MAKES NO DETERMINATION REGARDING THE SUITABILITY OF ANY EXERCISE OR ACTIVITY ON THE PLATFORM, OR OF ANY THERAPIST, PHYSICIAN, HEALTHCARE PROFESSIONAL, OR SERVICE PROVIDER WITH RESPECT TO YOUR MEDICAL OR HEALTH CONDITION OR CIRCUMSTANCE. THE NEXT FITNESS THING DOES NOT ENDORSE ANY SERVICE PROVIDER LISTED ON ITS PLATFORM. THE NEXT FITNESS THING DOES NOT DETERMINE IF A SERVICE PROVIDER LISTED ON THE SITE IS DULY LICENSED, REGISTERED, OR IN GOOD STANDING WITH THE STATE AND/OR ITS PROFESSIONAL BOARD. YOU SHOULD NOT RELY ON THIS SITE OR ANY CONTENT OR INFORMATION FOUND OR ACCESSED ON THE SITE AS A SOURCE OF PROFESSIONAL, MEDICAL OR MENTAL HEALTH ADVICE. THE NEXT FITNESS THING DOES NOT PROVIDE ANY MEDICAL OR MENTAL HEALTH SERVICES, ADVICE, OPINIONS, OR RECOMMENDATIONS, AND IS NOT LICENSED TO DO SO.
USER ACKNOWLEDGMENT: YOU ACKNOWLEDGE AND AGREE THAT YOU TAKE FULL RESPONSIBILITY IN USING THE NEXT FITNESS THING AND ITS INFORMATION, INCLUDING INFORMATION PERTAINING TO ANY SERVICE PROVIDER.
1.
The Next Fitness Thing Service Overview. The Next Fitness Thing is a platform for home activities that enables asynchronous training, real-time feedback, and in-depth insights by utilizing AI and computer vision to track body movements. Professional Service Providers can establish professional profiles on the platform, communicate with their clients in a one-on-one training environment both real time and asynchronous and assign customized activities to each of their clients.
2.
Eligibility. You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18-years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3.
Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, [date of birth,] email address, or other contact information. You agree that the information you provide to us is accurate, complete, and not misleading, and that you will keep it accurate and up to date at all times. When you register, you will be asked to create a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you should immediately notify us at [email protected]. If you are accessing the Service through a Service Provider, your Service Provider will be responsible for your initial registration with The Next Fitness Thing.
4.
General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable unless otherwise specifically provided for herein.
4.1
Access Through Service Provider. If you are accessing the Service through a Service Provider, you will be responsible for any amounts you may owe to that Service Provider. If you are accessing the Service as a Service Provider or an individual user, the following terms of this Section 4 apply.
4.2
Price. The Next Fitness Thing reserves the right to determine pricing for the Service. The Next Fitness Thing will make reasonable efforts to keep pricing information published on the Service up to date. We encourage you to check our pricing page periodically for current pricing information. The Next Fitness Thing may change the fees for any feature of the Service, including additional fees or charges, if TNFT gives you advance notice of changes before they apply. The Next Fitness Thing, at its sole discretion, may make promotional offers with different features and different pricing to any of TNFT’s customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
4.3
Authorization. You authorize The Next Fitness Thing to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by TNFT, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, then The Next Fitness Thing may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
4.4
Subscription Service. The Service may include certain subscription-based plans with automatically recurring payments for periodic charges (“Subscription Service”). The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. The Subscription Service will begin on the Subscription Billing Date and continue for the subscription period that you select on your account (such period, the “Initial Subscription Period”), and will automatically renew for successive periods of the same duration as the Initial Subscription Period (the Initial Subscription Period and each such renewal period, each a “Subscription Period”) unless you cancel the Subscription Service or we terminate it. If you activate a Subscription Service, then you authorize The Next Fitness Thing or its third-party payment processors to periodically charge, on a going-forward basis and until cancellation of the Subscription Service, all accrued sums on or before the payment due date. For information on the “Subscription Fee”, please see our “Plan & Billing” page on our website. Your account will be charged automatically on the Subscription Billing Date and thereafter on the renewal date of your Subscription Service for all applicable fees and taxes for the next Subscription Period. You must cancel your Subscription Service 30 days before it renews in order to avoid billing the next periodic Subscription Fee to your account. The Next Fitness Thing or its third-party payment processor will bill the periodic Subscription Fee to the payment method associated with your account or that you otherwise provide to us. You may cancel the Subscription Service by contacting us at [email protected]. YOUR CANCELLATION MUST BE RECEIVED BEFORE THE RENEWAL DATE IN ORDER TO AVOID CHARGE FOR THE NEXT SUBSCRIPTION PERIOD.
4.5
Delinquent Accounts. The Next Fitness Thing may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any unpaid amount, including collection fees. If your payment method is no longer valid at the time a renewal Subscription Fee is due, then TNFT reserves the right to suspend or delete your account and any information or User Content (defined below) associated with your account without any liability to you.
4.6
Free Trial. We reserve the right to provide any or part of the Service on a free-trial basis. If you register on our platform for a free trial, We will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service, or (b) the start date of any Subscription Service ordered by you. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
5.
Licenses
5.1
Limited License. Subject to your complete and ongoing compliance with these Terms, The Next Fitness Thing grants you , solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile or other downloadable application associated with the Service obtained from a legitimate marketplace on a mobile device that you own or control; and (b) access and use the Service.
5.2
License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including, but not limited to, any security or access control mechanism. If you are prohibited under applicable law from using the Service, then you may not use it.
5.3
Feedback. We respect and appreciate the thoughts and comments from our users. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant The Next Fitness Thing an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services. We will have no obligation to provide you with attribution for any Feedback you provide to us.
6.
Ownership; Proprietary Rights. The Service is owned and operated by The Next Fitness Thing. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service provided by TNFT. (“Materials”) are protected by intellectual property and other laws. All Materials included in the Service are the property of The Next Fitness Thing or its third-party licensors. Except as expressly authorized by TNFT, you may not make use of the Materials. There are no implied licenses in these Terms and The Next Fitness Thing reserves all rights to the Materials not granted expressly in these Terms.
7.
Third-Party Terms
7.1
Third-Party Service. The Next Fitness Thing may allow log-in access to the Service through a third-party service provider such as Google or Apple. By using one of these third-party services, you hereby authorize TNFT to transfer that information to the applicable third-party service. Third-party services are not under The Next Fitness Thing’s control, and, to the fullest extent permitted by law, TNFT is not responsible for any third-party service’s use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under The Next Fitness Thing’s control, and TNFT is not responsible for their content. Please be sure to review the terms of use and privacy policy of any third-party services.
7.2
Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
8.
User Content
8.1
User Content Generally. Certain features of the Service may permit users to submit, upload, publish, broadcast, or otherwise transmit (“Post”) content to the Service, including messages, photos, video or audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, folders, data, text, and any other works of authorship or other works (“User Content”). You retain any copyright and other proprietary rights that you may hold in the User Content that you Post to the Service, subject to the licenses granted in these Terms.
8.2
Limited License Grant to The Next Fitness Thing. By Posting User Content to or via the Service, you grant TNFT a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense through multiple tiers) to host, store, transfer, publicly display, publicly perform (including by means of a digital audio transmission), communicate to the public, reproduce, modify for the purpose of formatting for display, create derivative works as authorized in these Terms, and distribute your User Content, in whole or in part, in any media formats and through any media channels, in each instance whether now known or hereafter developed. All of the rights you grant in these Terms are provided on a through-to-the-audience basis, meaning the owners or operators of external services will not have any separate liability to you or any other third party for User Content Posted or otherwise used on external services via the Service. You agree to pay all monies owing to any person or entity resulting from Posting your User Content and from The Next Fitness Thing’s exercise of the license set forth in this Section.
8.3
Limited License Grant to Other Users. By Posting User Content to or via the Service and making it available to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
8.4
You Must Have Rights to the Content You Post; User Content Representations and Warranties. You must not Post User Content if you are not the owner of or are not fully authorized to grant rights in all of the elements of that User Content, including in all ambient music and underlying musical works embodied in any sound recording. The Next Fitness Thing disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
8.4.1
you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize The Next Fitness Thing and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by The Next Fitness Thing, the Service, and these Terms;
8.4.2
your User Content, and the Posting or other use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, misappropriate, or otherwise breach any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property, contract, or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause The Next Fitness Thing to violate any law or regulation or require us to obtain any further licenses from or pay any royalties, fees, compensation or other amounts or provide any attribution to any third parties; and
8.4.3
your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
8.5
User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users Post and will not be in any way responsible or liable for User Content. The Next Fitness Thing may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms, is alleged to violate the rights of third parties, or is otherwise objectionable. You understand that, when using the Service, you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against The Next Fitness Thing with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, TNFT does not permit infringing activities on the Service.
8.6
Monitoring Content. The Next Fitness Thing does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that TNFT reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time The Next Fitness Thing chooses to monitor the content, then TNFT still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy (defined below). The Next Fitness Thing may block, filter, mute, remove or disable access to any User Content uploaded to or transmitted through the Service without any liability to the user who Posted such User Content to the Service or to any other users of the Service.
9.
Communications
9.1
Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when you are not in the app. You can turn off notifications by visiting your mobile device’s “settings” page.
9.2
Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
10.
Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
10.1
use the Service for any illegal purpose or in violation of any local, state, national, or international law;
10.2
harass, threaten, demean, embarrass, bully, or otherwise harm any other user of the Service;
10.3
violate, encourage others to violate, or provide instructions on how to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
10.4
access, search, or otherwise use any portion of the Service through the use of any engine, software, tool, agent, device, or mechanism (including spiders, robots, crawlers, and data mining tools) other than the software or search agents provided by The Next Fitness Thing;
10.5
interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use, printing or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
10.6
interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
10.7
perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation or identify, accessing any other Service account without permission, or falsifying your age or date of birth;
10.8
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
10.9
attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
11.
Intellectual Property Rights Protection
11.1
Respect of Third Party Rights. The Next Fitness Thing respects the intellectual property rights of others, takes the protection of intellectual property rights very seriously, and asks users of the Service to do the same. Infringing activity will not be tolerated on or through the Service.
11.2
DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about any material on the Service, you may contact our Designated Agent at the following address:
The Next Fitness Thing, Inc.
Attn: Legal Department (IP Notification)
Email: [email protected]
11.3
Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a written “Notification of Claimed Infringement” to the Designated Agent identified above containing the following information:
an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
a description of the copyrighted work or other intellectual property right that you claim has been infringed;
a description of the material that you claim is infringing and where it is located on the Service;
your address, telephone number, and email address;
a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or other intellectual property right owner, its agent, or the law; and
a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or other intellectual property right owner or authorized to act on the copyright or intellectual property owner’s behalf.
11.4
Your Notification of Claimed Infringement may be shared by The Next Fitness Thing with the user alleged to have infringed a right you own or control as well as with the operators of publicly available databases that track notifications of claimed infringement, and you consent to TNFT making such disclosures. You should consult with your own lawyer or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
11.5
Repeat Infringers. The Next Fitness Thing’s policy is to: (a) remove or disable access to material that TNFT believes in good faith, upon notice from an intellectual property rights owner or authorized agent, is infringing the intellectual property rights of a third party by being made available through the Service; and (b) in appropriate circumstances, to terminate the accounts of and block access to the Service by any user who repeatedly or egregiously infringes other people’s copyright or other intellectual property rights. The Next Fitness Thing will terminate the accounts of users that are determined by TNFT to be repeat infringers. TNFT reserves the right, however, to suspend or terminate accounts of users in our sole discretion.
11.6
Counter Notification. If you receive a notification from The Next Fitness Thing that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide The Next Fitness Thing with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to TNFT’s Designated Agent through one of the methods identified in Section 11.2, and include substantially the following information:
your physical or electronic signature;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if you are residing outside of the United States, then for any judicial district in which The Next Fitness Thing may be found, and that you will accept service of process from the person who provided notification under Section 11.2 above or an agent of that person.
11.7
A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
11.8
Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to The Next Fitness Thing in response to a Notification of Claimed Infringement, then TNFT will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that The Next Fitness Thing will replace the removed User Content or cease disabling access to it in 10 business days, and TNFT will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless TNFT’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on TNFT’s system or network.
11.9
False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides at 17 U.S.C. § 512(f) that: “[a]ny person who knowingly materially misrepresents under Section 512 of the Copyright Act (17 U.S.C. § 512) (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of The Next Fitness Thing relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.” The Next Fitness Thing reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
12.
Modification of Terms. We may, from time to time, change these Terms. Please check these Terms periodically for changes. Revisions will be effective immediately except that, for existing users, material revisions will be effective 30 days after posting or notice to you of the revisions unless otherwise stated. If a change to these Terms materially modifies your rights or obligations, we require that you accept the modified Terms in order to continue to use the Service. If you do not agree to the modified Terms, then you should remove your User Content and discontinue your use of the Service. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.
13.
Term, Termination, and Modification of the Service
13.1
Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
13.2
Termination. If you violate any provision of these Terms, then your authorization to access the Service and these Terms automatically terminate. In addition, The Next Fitness Thing may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice, and without any liability to you arising from such termination. You may terminate your account and these Terms at any time by contacting customer service at [email protected].
13.3
Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay The Next Fitness Thing any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 13.3, 14, 15, 16, 17, and 18 will survive.
13.4
Modification of the Service. The Next Fitness Thing reserves the right to modify or discontinue all or any portion of the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. The Next Fitness Thing will have no liability for any change to the Service, including any paid-for functionalities of the Service, or any suspension or termination of your access to or use of the Service. You should retain copies of any User Content you Post to the Service so that you have permanent copies in the event the Service is modified in such a way that you lose access to User Content you Posted to the Service.
14.
Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify The Next Fitness Thing, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “TNFT Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including attorneys’ fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
15.
Disclaimers; No Warranties by The Next Fitness Thing
15.1
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. THE NEXT FITNESS THING DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (a) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (b) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE NEXT FITNESS THING DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND THE NEXT FITNESS THING DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
15.2
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR THE NEXT FITNESS THING ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE THE NEXT FITNESS THING ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. THE NEXT FITNESS THING EXPRESSLY DISCLAIM ALL LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, FOR: (A) CONTENT POSTED ON THE PLATFORM BY ANY THIRD-PARTIES AND USERS INCLUDING SERVICE PROVIDERS, (C) THIRD-PARTY SITES AND ANY THIRD-PARTY PRODUCT OR SERVICE LISTED ON OR ACCESSIBLE TO YOU THROUGH THE PLATFORM, AND (C) THE QUALITY OR CONDUCT OF ANY SERVICE PROVIDER YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE PLATFORM.
15.3
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. THE NEXT FITNESS THING DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT TNFT IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
16.
Limitation of Liability
16.1
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TNFT ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY TNFT ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. THE INFORMATION ACCESSIBLE TO YOU THROUGH THE SERVICE IS NOT INTENDED IN ANY WAY TO BE USED AS MEDICAL ADVICE OR TO REPLACE MEDICAL ADVICE OFFERED BY YOU OR OTHER HEALTHCARE PROFESSIONALS FAMILIAR WITH YOUR CONDITION. THE INFORMATION PROVIDED BY THE NEXT FITNESS THING DOES NOT NECESSARILY REPRESENT THE MOST CURRENT PRACTICES OR METHODS IN PHYSICAL REHABILITATION.
16.2
EXCEPT AS PROVIDED IN SECTIONS 17.5 AND 17.6 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE TNFT ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT YOU HAVE PAID TO THE NEXT FITNESS THING FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM AND (b) US$100.
16.3
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
17.
Dispute Resolution and Arbitration
17.1
Generally. In the interest of resolving disputes between you and The Next Fitness Thing in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and The Next Fitness Thing agree that every dispute arising in connection with these Terms, the Service, and communications from us will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, the Service, or any communications to or from us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TNFT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
17.2
Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
17.3
Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to The Next Fitness Thing, Inc., Attention: Legal Department – Arbitration Opt-Out, [email protected] that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once The Next Fitness Thing receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
17.4
Arbitrator. Any arbitration between you and The Next Fitness Thing will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at +1-800-778-7879, or by contacting The Next Fitness Thing. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
17.5
Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). The Next Fitness Thing’s address for Notice is: The Next Fitness Thing, Inc., [email protected]. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or The Next Fitness Thing may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or The Next Fitness Thing must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by The Next Fitness Thing in settlement of the dispute prior to the award, The Next Fitness Thing will pay to you the higher of: (a) the amount awarded by the arbitrator and (b) [US$10,000].
17.6
Fees. If you commence arbitration in accordance with these Terms, The Next Fitness Thing will reimburse you for your payment of the filing fee, unless your claim is for more than US$10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in the county and state of your [residence/billing address], but if the claim is for US$10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your [residence/billing address]. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse The Next Fitness Thing for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
17.7
No Class Actions. YOU AND TNFT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and The Next Fitness Thing agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
17.8
Modifications to this Arbitration Provision. If The Next Fitness Thing makes any future change to this arbitration provision, other than a change to The Next Fitness Thing’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to The Next Fitness Thing’s address for Notice of Arbitration, in which case your account with The Next Fitness Thing will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
17.9
Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if The Next Fitness Thing receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
18.
Miscellaneous
18.1
General Terms. These Terms, including the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and The Next Fitness Thing regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms and all rights granted under these Terms, including with respect to your User Content, at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to.” If any part of these Terms is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
18.2
Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and The Next Fitness Thing submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Diego County, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
18.3
Privacy Policy. Please read the The Next Fitness Thing Privacy Policy (the “Privacy Policy”) carefully for information relating to our collection, use, storage, and disclosure of your personal information. The TNFT Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
18.4
Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
18.5
Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
18.6
Contact Information. The Service is offered by The Next Fitness Thing, Inc., located at Placerville, CA, USA. You may contact us by sending correspondence to that address or by emailing us at [email protected].
18.7
Notice to California Residents. If you are a California resident, then under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
18.8
No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
18.9
International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
19.
Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and The Next Fitness Thing only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content of it. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple, and Apple will refund any applicable purchase price for the mobile application to you. To the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.