TERMS AND CONDITIONS OF USE
Hello and welcome to #fitflyx (“#fitflyx”, “we”, “us”, “our”, “flyx inc.”, the “Sponsor”, with reference including any of our officers, shareholders, employees, agents, directors, subsidiaries, affiliates, successors, assigns, transferees, assigns, suppliers, or licensors). By signing up, participating in or otherwise using the #fitflyx challenge (the then-prevailing challenge as offered via https://flyxhub.com or the challenge forthcoming, as marketed on https://fitflyx.com), by any of the registration alternatives detailed in the REGISTRATION ALTERNATIVES section below, and any of our websites, mobile applications, and software applications (together, the “Program”), which includes your participation in a contest to win prizes during the #fitflyx challenge (the “Contest”) or accessing, participating in, or otherwise using any content or material that is made available by #fitflyx through the Program, including the content specifically made available to registered participants in the #fitflyx challenge (collectively, the “Content”) you are entering into a binding contract with the #fitflyx entity indicated at the bottom of this document.
Please read the Agreements carefully. They cover important information about the Program and Content provided to you and any charges, taxes, and fees we bill you. The Agreements include information about future changes to the Agreements, limitations of liability, privacy information, a class action waiver, and resolution of disputes by arbitration instead of in court.
In order to use the Program and access the Content, you need to (1) be 18 or older, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in a country where the Program is available. You also promise that any registration information that you submit to #fitflyx is true, accurate, and complete, and you agree to keep it that way at all times.
CHANGES TO THE AGREEMENTS
Occasionally we may, in our discretion, make changes to the Agreements. When we make material changes to the Agreements, we’ll provide you with prominent notice as appropriate under the circumstances, e.g., by displaying a prominent notice within the Program or by sending you an e-mail. In some cases, we will notify you in advance, and your continued use of the Program after the changes have been made will constitute your acceptance of the changes. Please therefore make sure you read any such notice carefully. If you do not wish to continue using the Program under the new version of the Agreements, you may terminate the Agreements by contacting us via our e-mail firstname.lastname@example.org.
#fitflyx users may post, upload, and/or contribute (“post”) content to the Program (which may include, for example, pictures, text, messages, information, and/or other types of content) (“User Content”).
You promise that, with respect to any User Content you post on #fitflyx, (1) you have the right to post such User Content, and (2) such User Content, or its use by #fitflyx as contemplated by the Agreements, does not violate the Agreements, applicable law, or the intellectual property (including without limitation copyright), publicity, personality, or other rights of others or imply any affiliation with or endorsement of you or your User Content by #fitflyx or any individual or entity without express written consent from such individual or entity.
#fitflyx may, but has no obligation to, monitor, review, or edit User Content. In all cases, #fitflyx reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in #fitflyx’s sole discretion, violates the Agreements. #fitflyx may take these actions without prior notification to you or any third party. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.
You are solely responsible for all User Content that you post. #fitflyx is not responsible for User Content nor does it endorse any opinion contained in any User Content. YOU AGREE THAT IF ANYONE BRINGS A CLAIM AGAINST #FITFLYX RELATED TO USER CONTENT THAT YOU POST, THEN, TO THE EXTENT PERMISSIBLE UNDER LOCAL LAW, YOU WILL INDEMNIFY AND HOLD #FITFLYX HARMLESS FROM AND AGAINST ALL DAMAGES, LOSSES, AND EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING OUT OF SUCH CLAIM.
#fitflyx respects intellectual property rights and expects you to do the same. The following is not permitted for any reason whatsoever:
• copying, redistributing, reproducing, “ripping”, recording, transferring, performing or displaying to the public, broadcasting, or making available to the public any part of the Program or the Content, or otherwise making any use of the Program or the Content which is not expressly permitted under the Agreements or applicable law or which otherwise infringes the intellectual property rights (such as copyright) in the Program or the Content or any part of it;
• reverse-engineering, decompiling, disassembling, modifying, or creating derivative works based on the Program, Content or any part thereof unless permitted by applicable law;
• circumventing any technology used by #fitflyx, its licensors, or any third party to protect the Content or the Service;
• selling, renting, sublicensing or leasing of any part of the Program or the Content;
• circumventing any territorial restrictions applied by #fitflyx or its licensors;
• removing or altering any copyright, trademark, or other intellectual property notices contained on or provided through the Program (including for the purpose of disguising or changing any indications of the ownership or source of any Content);
• providing your password to any other person or using any other person’s username and password; or
• “crawling” the Program or otherwise using any automated means (including bots, scrapers, and spiders) to collect information from #fitflyx.
Please respect #fitflyx and other users of the Program. Don’t engage in any activity, post any User Content, or register and/or use a username, which is or includes material that:
• is offensive, abusive, defamatory, pornographic, threatening, or obscene;
• is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to violations of intellectual property rights, privacy rights, or proprietary rights of #fitflyx or a third party;
• includes your password or purposely includes any other user’s password or purposely includes personal data of third parties or is intended to solicit such personal data;
• includes malicious content such as malware, Trojan horses, or viruses, or otherwise interferes with any user’s access to the Service;
• is intended to or does harass or bully other users;
• impersonates or misrepresents your affiliation with another user, person, or entity, or is otherwise fraudulent, false, deceptive, or misleading;
• uses automated means to artificially promote content;
• involves the transmission of unsolicited mass mailings or other forms of spam (“spam”), junk mail, chain letters, or similar, including through the #fitflyx inbox;
• involves commercial or sales activities, such as advertising, promotions, contests, sweepstakes, or pyramid schemes, that are not expressly authorized by #fitflyx;
• links to, references, or otherwise promotes commercial products or services, except as expressly authorized by #fitflyx;
• interferes with or in any way disrupts the Program, tampers with, breaches, or attempts to probe, scan, or test for vulnerabilities in the Service or #fitflyx’s computer systems, network, usage rules, or any of #fitflyx’s security components, authentication measures or any other protection measures applicable to the Service, the Content or any part thereof; or
• conflicts with the Agreements, as determined by #fitflyx.
You acknowledge and agree that posting any such User Content may result in immediate termination or suspension of your #fitflyx account.
Please be thoughtful about how you use the Program and what you share. The Program includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public. Remember that shared or publicly available information may be used and re-shared by other users on #fitflyx or across the web, so please use #fitflyx carefully and be mindful of your account settings. #fitflyx has no responsibility for your choices to post material on the Service.
Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.
USER PRIVACY GUIDELINES
THIRD PARTY APPLICATIONS
The Program is integrated with third party applications, websites, and services (“Third Party Applications”) to make available content, products, and/or services to you. These Third Party Applications may have their own terms and conditions of use and privacy policies and your use of these Third Party Applications will be governed by and subject to such terms and conditions and privacy policies. You understand and agree that #fitflyx does not endorse and is not responsible or liable for the behavior, features, or content of any Third Party Application or for any transaction you may enter into with the provider of any such Third Party Applications.
Users may register for the Program in one of two ways: 1) a 7 Day Free Trial or 2) standard registration for the Full Season, which provides you access to the entire #fitflyx challenge, both as offered on https://fitflyx.com. Refer to the following sections for details on each registration option.
7 DAY FREE TRIAL
We have made available a 7 Day Free Trial of the #fitflyx challenge. You register for the 7 Day Free Trial by entering your first and last name and e-mail and clicking the “START 7 DAY FREE TRIAL” button on https://fitflyx.com. We do not collect your billing information during the registration process and you will not be charged a registration fee to use the 7 Day Free Trial.
You acknowledge that participating in the 7 Day Free Trial does not make you eligible to enter the Contest and therefore you cannot win a Prize. For clarity, only participants who register for the Full Season are eligible to enter the Contest and can win a Prize.
The 7 Day Free Trial will provide you access to the Program for 7 consecutive days only starting January 7, 2018. Following the completion of the 7 Day Free Trial, you must upgrade to Full Season membership to continue accessing the Program. We will e-mail you a link to register for the Full Season prior to completion of your 7 Day Free Trial; alternatively, you can upgrade at any time by paying the registration fee on https://fitflyx.com. Refer to the following section for details on Full Season registration.
REGISTRATION AND PAYMENTS (FULL SEASON REGISTRATION ONLY)
By registering for the Program (for the Full Season, either by upgrading your 7 Day Free Trial or by purchasing the Full Season outright) you understand that you will be charged a registration fee, the applicable amount shown on https://fitflyx.com. Prices, and any limited time discounts (e.g. “early bird pricing”), are subject to change, or end, as applicable, at our discretion. All amounts are denominated in U.S. dollars and payments made by you in any other currency will be charged at the then-prevailing exchange rate as determined by our third party payment processing platform, Stripe, subject to any additional fees, charges, or exchange rate spreads levied on you by your bank, credit card provider, etc. You understand and acknowledge that all payments are one-time, corresponding with your membership in a single #fitflyx challenge, and are non-refundable except at our discretion.
You understand and acknowledge that you are responsible for any duties or taxes assessed in your jurisdiction or otherwise upon your registration for the #fitflyx challenge. You agree that in no circumstances will we be liable for such duties and taxes.
Depending on the details you provide to us during your order, value-added tax (“VAT”) may be calculated and charged. If applicable, the final price indicated includes anticipated VAT that we will collect from you based on information provided to us. This VAT may not be shown as a separate charge during checkout and may instead be included in the product price.
ACCIDENT WAIVER AND RELEASE OF LIABILITY
BY REGISTERING, YOU HEREBY ASSUME ALL OF THE RISKS OF PARTICIPATING IN ANY/ALL ACTIVITIES ASSOCIATED WITH THE PROGRAM OR USE OF ITS CONTENT, including by way of example and not limitation, any risks that may arise from negligence or carelessness on the part of the persons or entities being released, from dangerous or defective equipment or property owned, maintained, or controlled by them, or because of their possible liability without fault.
You certify that you are physically fit, have sufficiently prepared or trained for participation in this activity, and have not been advised to not participate by a qualified medical professional. You certify that there are no health-related reasons or problems which preclude your participation in the Program or use of its Content. You should not participate in the Program without first consulting with a qualified medical professional.
You acknowledge that this Accident Waiver and Release of Liability Form will be used by the sponsors and organizers of the Program and its Content in which you may participate, and that it will govern your actions and responsibilities in participating or using the Program or its Content.
In consideration of your application and permitting me to participate in this activity, you hereby take action for yourself, your executors, administrators, heirs, next of kin, successors, and assigns as follows:
(A) YOU WAIVE, RELEASE, AND DISCHARGE from any and all liability, including but not limited to, liability arising from the negligence or fault of the entities or persons released, for your death, disability, personal injury, property damage, property theft, or actions of any kind which may hereafter occur to you including your traveling to and from this activity, THE FOLLOWING ENTITIES OR PERSONS: flyx inc., and/or our directors, officers, employees, volunteers, representatives, and agents, and the activity holders, sponsors, and volunteers;
(B) INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE the entities or persons mentioned in this paragraph from any and all liabilities or claims made as a result of participation in this activity, whether caused by the negligence of release or otherwise.
You acknowledge that flyx inc. and our directors, officers, volunteers, representatives, and agents
are NOT responsible for the errors, omissions, acts, or failures to act of any party or entity conducting a specific activity on their behalf.
You acknowledge that this activity may involve a test of a person’s physical and mental limits and carries with it the potential for death, serious injury, and property loss. The risks include, but are not limited to, those caused by terrain, facilities, temperature, weather, condition of participants, equipment, vehicular traffic, lack of hydration, and actions of other people including, but not limited to, participants, volunteers, monitors, and/or producers of the activity.
You hereby consent to receive medical treatment which may be deemed advisable in the event of injury, accident, and/or illness during this activity.
The Accident Waiver and Release of Liability Form shall be construed broadly to provide a release and waiver to the maximum extent permissible under applicable law.
YOU CERTIFY THAT YOU HAVE READ THIS DOCUMENT AND YOU FULLY UNDERSTAND ITS CONTENT. YOU ARE AWARE THAT THIS IS A RELEASE OF LIABILITY AND A CONTRACT AND YOU AGREE TO IT OF YOUR OWN FREE WILL.
DETAILS AND RULES OF THE PROGRAM
By signing up for the Program, you will participate in a four (4) week fitness program commencing on the start date as indicated on the landing page (https://fitflyx.com) for the respective season for which you have signed up. Each Monday to Friday, you will be provided with a daily workout routine to be completed on a best-efforts basis. Once completed, you will log your workout (including sets and reps completed) within our user platform (https://flyxhub.com) within no more than 24 hours during Monday to Friday, and Saturday (week three only) to receive credit. Not logging completion of your workout will result in one strike toward our three strike policy. Receiving three strikes cumulatively at any point during the four (4) week fitness program will result in your disqualification from the challenge and elimination from the pool of contestants which may be entitled to receive prizes, i.e. elimination from the Contest. Your participation in the Contest is subject to successful submission of “Before” and “After” pictures, that have been approved by us, in accordance with our Rules for Picture Submissions (as available on https://flyxhub.com and https://fitflyx.com/picture-taking-rules/). On the Saturday of the third week of the four (4) week fitness program there will be an Elimination Challenge, which, if not completed and submitted within 24 hours, will result in disqualification from the challenge and elimination from the Contest.
Note that the rules of the Program are subject to change at our discretion. We will notify you of material changes via a pop-up on https://flyxhub.com or via e-mail. Please refer to these Terms for any updates.
In order to participate in the Program, you must commit to participating with integrity and honesty. You commit to accurately log workout data and statistics including your weight and body measurements, and agree to not exaggerate, manipulate, or otherwise falsify such information. Any manipulation, including, but not limited to, photo-editing of your “Before” and “After” pictures to improve the appearance of your body and attempt to enhance your chances of winning is strictly forbidden and contravenes these Terms. We reserve the right to grant prizes at our discretion, and may revoke your ability to win prizes at any time should we suspect that you have engaged in dishonest conduct or deliberate manipulation of your workout data, statistics, or “Before” and “After” pictures. For additional rules related to prizes, refer to the following section.
By signing up for the Program, you agree to receive periodic e-mails related to the Program, including, but not limited to, daily reminders to workout, notifications of important changes to the Program or these Agreements. You may unsubscribe at any time by clicking the link at the bottom of any e-mail we sent to you.
CONTEST RULES AND REGULATIONS
The Contest Rules and Regulations contained within this section apply solely to #fitflyx | two, the upcoming challenge marketed on https://fitflyx.com or via our mobile applications.
By registering for the Program, which includes your participation in the Contest, entrants agree to abide by these Contest Rules and Regulations and the decisions of us, flyx inc., as the sponsor (the “Sponsor”), which are final.
1. THE CONTEST PERIOD
This Contest runs from January 7, 2018 at 12:01 a.m. to February 9, 2018 at 11:59 p.m. (ET), or until we announce the prize winners, if earlier, (the entire period being the “Contest Period”), during which time these Contest Rules and Regulations are applicable.
2. HOW TO ENTER
REGISTRATION IN OUR PROGRAM IS REQUIRED TO ENTER THE CONTEST, I.E. A PURCHASE IS NECESSARY.
VOID WHERE PROHIBITED.
To enter the Contest participants must click on the link provided and complete the electronic questionnaire and/or Contest entry form in full. After successfully submitting the Contest entry form during the Contest Period, you will automatically be entered into the Contest.
Your submission will automatically earn you one (1) entry into the Contest. Only one (1) entry per person allowed.
3. WHO CAN ENTER
To be an entrant, you must be (1) be 18 or older, (2) have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and (3) be resident in a country where the Program is available by the start of the Contest Period, excluding employees, agents and representatives of the Sponsor or of subsidiaries of the Sponsor or any other person directly related to the administration of the Contest, as well as members of their immediate families (father, mother, brothers, sisters, children,) their legal or common-law spouse and any individual with whom such employees, agents and representatives reside.
An entrant may not win more than one Prize.
4. THE PRIZES
There will be one (1) Grand Prize awarded consisting of $1,000 USD, at a minimum, to the first place winner. We may increase the size of this prize at our discretion based on the volume of participants in the Contest. The Grand Prize must be accepted as awarded without substitution, except at the discretion of the Sponsor, and is not transferable.
There will be one (1) Prize awarded consisting of $750 USD to the second place winner.
There will be one (1) Prize awarded consisting of $500 USD to the third place winner.
There will be seven (7) Prizes awarded, each consisting of $100 USD, to an additional seven winners.
We may award other prizes to participants throughout the Contest. Any such prizes will be awarded at our discretion.
All Secondary Prizes must be accepted as awarded without substitution, except at the discretion of the Sponsor, and are not transferable.
By entering this Contest, you acknowledge that the promotion is offered by flyx inc. and is in no way sponsored, endorsed or administered by, or associated with, Apple Inc., and you release Apple Inc. from all liability.
5. SELECTION OF WINNERS
Winners for the Grand Prize and the Secondary Prizes will be conducted on or after February 4, 2018 but no later than February 9, 2018 from all eligible entries received during the Contest Period, at flyx inc.’s registered office address. The Grand Prize will be selected first. Winners will only be able to win one prize.
All prize winners at selected at our discretion. Any attempt to fraudulently enhance your chances of winning is strictly forbidden and contravenes these Contest Rules and Regulations. We reserve the right to grant prizes at our discretion, and may revoke your ability to win prizes at any time should we suspect that you have engaged in dishonest conduct or deliberate manipulation of your personal information including, but not limited to, workout data, statistics, or “Before” and “After” pictures. We reserve the right to award prizes exactly as offered in this Contest, or a similar prize which is not materially different (for reasons including, but not limited to, if the original prize is unavailable, back-ordered, etc.), or an equivalent monetary value, at our discretion.
The odds of winning depend on the number of eligible entries received during the Contest Period.
6. HOW TO WIN
The selected entrants will be contacted by e-mail, telephone, or social media by a representative of the Sponsor to coordinate arrangements to award the Prize, including the appropriate e-mail address to which the Prize will be delivered. If a selected entrant cannot be reached via these means within three (3) days of the draw date, or if, for any other reason the Prize cannot be awarded, another Contest entry will be selected and so on, until all the Prizes have been awarded.
We will send prize winners their Prize via bank wire, domestic or international money transfer, or a reputable third party payment processor, at our discretion. We reserve the right to pay winners their Prize in USD or in their local currency, at our discretion. We will be solely responsible for any fees or charges incurred to send a Prize to the winner’s chosen e-mail address. You acknowledge and agree that we will not be responsible for any duties or levies applied by your financial institutional or customs for international prize deliveries, i.e. for clarity, once the Prize has been sent, in no circumstance will we be responsible for any further duties, charges or fees levied on you to receive your Prize. You will be responsible for such duties, charges or fees in order to receive your Prize.
7. GENERAL TERMS AND CONDITIONS
The Sponsor is not responsible for any human or computer-generated error in the selection of an entrant or the awarding of a Prize.
The Sponsor reserves the right in its sole discretion to withdraw, terminate or modify all or any part of the Contest, if for any reason, the Contest is not capable of running as planned, including corruption, tampering, unauthorized intervention, fraud, a virus, a bug or any other cause beyond the control of the Sponsor and which, in the opinion of the Sponsor, affects the administration, security, fairness, integrity or proper conduct of this Contest.
The Sponsor will not be responsible for late, lost, illegible, incomplete or destroyed entries and all such entries, including entry material/data that have been tampered with or altered, are void. The Sponsor does not assume any responsibility for incorrect or inaccurate capture of entry information, technical malfunctions, human or technical error, printing errors, lost, delayed or garbled data or transmissions, electronic communications which are undeliverable as a result of any form of active or passive filtering of any kind, omission, interruption, deletion, defect or failures of any telephone or computer lines or networks, computer equipment, software or any combination thereof. In addition, the Sponsor shall not be responsible due to technical problems, traffic congestion on the Internet or at any website, or any combination thereof including any injury or damage to an entrant’s or any other person’s computer or property related to or resulting from playing or downloading any material on the Contest Website.
Any person who enters or tries to enter the Contest in a manner which is unfair to the other entrants will be automatically disqualified and could be referred to the appropriate authorities. The use of automated software or computer programs to register in or enter this Contest is prohibited and any individual who uses or attempts to use such methods to register or enter will be disqualified. Any attempt to deliberately damage any website or to undermine the legitimate operation of this Contest is a violation of criminal and civil laws, and should such an attempt be made, the Sponsor reserves the right to seek remedies and damages to the fullest extent permitted by law, including criminal prosecution. In the event it is determined that an entrant has entered in a fashion not sanctioned by these Official Contest Rules and Regulations and/or has submitted more than the number of entries permitted by these Official Contest Rules and Regulations, the entrant will be disqualified.
By entering this Contest, winners release the Sponsor, its subsidiaries, affiliated companies, their advertising and promotional agencies, their employees, representatives and agents from any and all liability for damages of whatever nature that arise from the acceptance or use of all or part of the Prize.
The Sponsor reserves the right to correct clerical or typographical errors in promotional materials or these Contest Rules and Regulations.
8. INTERNATIONAL ENTRANTS
This Contest is subject to all applicable federal, provincial and municipal laws and is void where prohibited.
This Contest is offered in accordance with the laws of the Province of Ontario (Canada). We will use our best efforts to ensure that this Contest operates in accordance with the laws of other jurisdictions; however, there can be no guarantee that such rules and regulations will be met. Therefore, in some jurisdictions this contest will be void and the entrant may be prohibited to register. Where entrants have already registered from a jurisdiction other than the Province of Ontario, and the contest is found not to be in compliance with the rules and regulations of such entrant’s jurisdiction, we reserve the right to notify that entrant, remove them from participation in the Contest, and refund that entrant’s registration fee any time prior to the official commencement of the #fitflyx | two challenge on January 7, 2018. By registering, you understand and acknowledge this risk, and agree that #fitflyx accepts no responsibility for any damages incurred where you have registered in a jurisdiction in which this contest is deemed void. If you have any questions regarding this policy, please e-mail email@example.com.
SEVERABILITY AND WAIVER
Unless as otherwise stated in the Agreements, should any provision of the Agreements be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Agreements, and the application of that provision shall be enforced to the extent permitted by law.
Any failure by #fitflyx or any third party beneficiary to enforce the Agreements or any provision thereof shall not waive #fitflyx’s or the applicable third party beneficiary’s right to do so.
We may assign the Agreements or any part of them, and we may delegate any of its obligations under the Agreements. You may not assign the Agreements or any part of them, nor transfer or sub-license your rights under the Agreements, to any third party.
To the fullest extent permitted by applicable law, you agree to indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable attorney fees and costs) arising out of: (1) your breach of this Agreement; (2) any User Content; (3) any activity in which you engage on or through the Program; and (4) your violation of any law or the rights of a third party.
GOVERNING LAW / JURISDICTION
Unless otherwise required by a mandatory law of a jurisdiction, the Agreements (and any non-contractual disputes/claims arising out of or in connection with them) are subject to the laws of the Province of Ontario (Canada), without regard to choice or conflicts of law principles.
Further, you and #fitflyx agree to the jurisdiction of the Courts of Ontario, Canada to resolve any dispute, claim, or controversy that arises in connection with the Agreements (and any non-contractual disputes/claims arising out of or in connection with them). This jurisdiction is “exclusive”, meaning that no other countries’ courts can preside over the matter.
CLASS ACTION WAIVER
WHERE PERMITTED UNDER THE APPLICABLE LAW, YOU AND #FITFLYX 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 ACTION. Unless both you and #fitflyx agree, no arbitrator or judge may consolidate more than one person’s claims or otherwise preside over any form of a representative or class proceeding.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section is enforceable, the following mandatory arbitration provisions apply to you:
You and #fitflyx agree that any dispute, claim, or controversy between you and #fitflyx arising in connection with or relating in any way to these Agreements or to your relationship with #fitflyx as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Agreements) will be determined by mandatory binding individual arbitration. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney fees), except that the arbitrator may not award declaratory or injunctive relief benefiting anyone but the parties to the arbitration. This arbitration provision will survive termination of the Agreements.
Notwithstanding the paragraph above, you and #fitflyx both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our rights, at any time, to (1) bring an individual action in small claims court, (2) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (3) seek injunctive relief in a court of law, or (4) to file suit in a court of law to address intellectual property infringement claims.
Either you or we may start arbitration proceedings. Any arbitration between you and #fitflyx will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC”) then in force (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules, as modified by these Agreements, and will be administered by the International Court of Arbitration of the ICC.
Any arbitration will be conducted in the English language and unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, the law to be applied in any arbitration shall be the law of the Province of Ontario (Canada) without regard to choice or conflicts of law principles.
Any arbitration must be commenced by filing a demand for arbitration within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission, or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitation period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). #fitflyx’s address for Notice is: #fitflyx, Attn: Legal Inquiries, PO Box 40055 Dupont PO, Toronto, ON, Canada. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or #fitflyx may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or #fitflyx shall not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. In the event our dispute is finally resolved through arbitration in your favor, #fitflyx shall pay you (1) the amount awarded by the arbitrator, if any, (2) the last written settlement amount offered by #fitflyx in settlement of the dispute prior to the arbitrator’s award; or (3) the amount you paid for registration, whichever is greater. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law. Except as required to enforce the arbitrator’s decision and award, neither you nor #fitflyx shall make any public announcement or public comment or originate any publicity concerning the arbitration, including, but not limited to, the fact that the parties are in dispute, the existence of the arbitration, or any decision or award of the arbitrator.
In the event that #fitflyx makes any future change to this arbitration provision (other than a change to #fitflyx’s address for Notice), you may reject any such change by sending us written notice within 30 days of the change to #fitflyx’s address for Notice, in which case your account with #fitflyx shall be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject, shall survive.
If the class action waiver (“CLASS ACTION WAIVER” section) is found to be unenforceable in arbitration or if any part of this section, “ARBITRATION”, is found to be invalid or unenforceable, then the entirety of this section, “ARBITRATION” shall be null and void and, in such case, the parties agree that the exclusive jurisdiction and venue described in “GOVERNING LAW / JURISDICTION” shall govern any action arising out of or related to the Agreements.
SERVICE LIMITATIONS AND MODIFICATIONS
We will make reasonable efforts to keep the Program operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. To the extent permissible under applicable law, we reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Program, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Program or any function or feature thereof. You understand, agree, and accept that we have no obligation to maintain, support, upgrade, or update the Program, or to provide all or any specific content through the Program. This section will be enforced to the extent permissible by applicable law. We may, from time to time, remove any Content without notice to the extent permitted by applicable law.
TERM AND TERMINATION
The Agreements will continue to apply to you until terminated by either you or us. We may terminate the Agreements or suspend your access to the Program at any time, including in the event of your actual or suspected unauthorised use of the Program, or non-compliance with the Agreements. If you or #fitflyx terminate the Agreements, or if we suspend your access to the Program, you agree that we shall have no liability or responsibility to you and we will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your #fitflyx account, please contact us at firstname.lastname@example.org. This section will be enforced to the extent permissible by applicable law. You may terminate the Agreements at any time.
WARRANTY AND DISCLAIMER
WE ENDEAVOUR TO PROVIDE THE BEST SERVICE WE CAN, BUT YOU UNDERSTAND AND AGREE THAT THE PROGRAM IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE PROGRAM AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, #FITFLYX MAKES NO REPRESENTATIONS AND DISCLAIM ANY WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE PROGRAM IS FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. IN ADDITION, WE MAKE NO REPRESENTATION NOR DO WE WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY APPLICATIONS (OR THE CONTENT THEREOF), USER CONTENT, OR ANY OTHER PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE PROGRAM OR ANY HYPERLINKED WEBSITE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING. YOU UNDERSTAND AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF THIRD PARTY APPLICATIONS OR PRODUCTS OR SERVICES ADVERTISED ON OR THROUGH THE PROGRAM. AS WITH ANY PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ADVICE OR INFORMATION WHETHER ORAL OR IN WRITING OBTAINED BY YOU FROM #FITFLYX SHALL CREATE ANY WARRANTY ON BEHALF OF #FITFLYX IN THIS REGARD. SOME ASPECTS OF THIS SECTION MAY NOT APPLY IN SOME JURISDICTIONS IF PROHIBITED BY APPLICABLE LAW.
THIS DOES NOT AFFECT YOUR STATUTORY RIGHTS AS A CONSUMER.
YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY PROBLEMS OR DISSATISFACTION WITH THE PROGRAM IS TO STOP USING THE PROGRAM. WHILE WE ACCEPT NO RESPONSIBILITY FOR THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, AND WHILE YOUR RELATIONSHIP WITH SUCH THIRD PARTY APPLICATIONS MAY BE GOVERNED BY SEPARATE AGREEMENTS WITH SUCH THIRD PARTIES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR SOLE AND EXCLUSIVE REMEDY, AS WITH RESPECT TO #FITFLYX, FOR ANY PROBLEMS OR DISSATISFACTION WITH THIRD PARTY APPLICATIONS OR THE CONTENT THEREOF, IS TO UNINSTALL AND/OR STOP USING ANY SUCH THIRD PARTY APPLICATIONS.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL #FITFLYX, OUR OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS, OR LICENSORS BE LIABLE FOR (1) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES; (2) ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS (WHETHER DIRECT OR INDIRECT), IN ALL CASES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER #FITFLYX HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; OR (3) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE PROGRAM, THIRD PARTY APPLICATIONS, OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO #FITFLYX DURING THE PRIOR TWELVE MONTHS IN QUESTION, TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW.
Nothing in the Agreements removes or limits our liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence, and, if required by applicable law, gross negligence. Some aspects of this section may not apply in some jurisdictions if prohibited by applicable law.
If you have any questions regarding these Terms, please e-mail email@example.com. We welcome your questions, concerns, and feedback.
WHAT INFORMATION DO WE COLLECT:
When you access and use the Digital Properties, we may collect information that identifies or relates to you, which includes, without limitation:
Contact and Demographic Information: Information on how to contact you, such as your name, e-mail address, phone number, mailing address and postal/zip code, which you may provide to us when, for example, you inquire about our company, registration, your account, or when you subscribe to receive one of our mailing lists. This may also include certain demographic information such as date of birth, age and gender.
Registration and Membership Information: Information provided when you establish an account on the Digital Properties, such as your email address, username, password, and other contact information provided, as well as information you provide in connection with your Digital Properties account, such as body transformation pictures.
Transaction Information: Information related to your purchase of goods and services through the Digital Properties, such as your credit/debit card information, billing address, the goods and services you purchased, and other related transaction information.
Usage Information: Information about your Internet connection, browser, or computer/device, IP address or device ID, and information on how you use and interact with the Digital Properties, such as pages or features you access.
Social Media and Third Party Apps: If you link your social media profiles and accounts to the Digital Properties, or otherwise interact with the Digital Properties through social media networks (e.g., by clicking a Facebook “like” button), information may be made available to, and collected by, the Digital Properties through those social media profiles and accounts.
HOW WE USE PERSONAL INFORMATION:
We use the personal information collected through our Digital Properties to provide you with the services and products you request, to deliver a more relevant and curated experience with the Digital Properties and relationship with #fitflyx, and to satisfy our other business purposes and needs. This may include, without limitation, using that information in connection with:
Transaction Fulfillment: Providing you with the goods, services or information you have requested, and to respond to your inquiries, requests and comments.
Promotional Materials: Communicating special offers, promotions and information about our company and service offerings to you via e-mail or via your mailing address, if you have provided one. We may also send you newsletters and information about products, services and promotions of our business partners and affiliates. If you do not wish to receive these promotional emails, you can opt out of future promotional mailings by clicking on the unsubscribe link located on the bottom of the relevant promotional email. If you maintain an account on our Digital Properties, you can also unsubscribe to promotional mailings at any time by adjusting your communications preferences within your account. Although we strive to update our email list as frequently as possible, you might receive another contact before we are able to remove you from our lists. Please note that even if you opt-out of receiving promotional emails, you will continue to receive Member Services related communications as it pertains to your member account, as described below.
Membership Communications: Providing members with administrative communications, announcements and information about their membership such as information regarding competition rules or changes to the format/delivery of the competition. #fitflyx may use any contact information held on file (including email, mailing address, telephone or mobile phone and fax) to communicate with you in relation to day-to-day administrative activities, such as online purchases and important service alerts.
Personalized Experience: Delivering a more relevant and curated experience to members, including by recommending services or content we think you will enjoy. As part of our efforts to provide members with a more personalized experience, we may combine the information regarding you and collected through the Digital Properties with other information that we have collected from you in the course of your relationship with #fitflyx, including, without limitation, workout data and commentary logged by you during the course of the competition.
Business Purposes and Research: Analyzing and improving the services we offer (including on or through the Digital Properties), better understanding our business and members, evaluating products and services that may be of interest to you, and carrying out internal purposes and research and otherwise operating our business. This may include aggregating information regarding users across our entire user base or part of our user base.
HOW WE SHARE INFORMATION:
Agents and Service Providers: We employ other companies and individuals to perform functions on our behalf. Examples include creating and maintaining our Web site, sending postal mail and e-mail, managing and updating customer lists, analyzing data, providing marketing assistance and providing customer service. They have access to users’ personal information in order to perform their functions, but may not use it for other purposes.
Social Media and Third Party Apps: We may share information with social networks when users interact with the Digital Properties (e.g., a clicking a Facebook “like” button) or connect their social media accounts to the Digital Properties. Please see below for more information on this, as we do not control these third parties or their privacy practices.
Corporate Transactions: In the event of a reorganization, merger or sale of #fitflyx or any of its affiliates, we may transfer any and all personal information we have collected to the relevant third party.
Aggregated Information: We may also share aggregated statistical data with partners that includes users’ demographic information but does not identify them. We reserve the right to provide any and all such aggregated and de-identified data to third parties.
PERMISSION TO USE IMAGES CONSENT & RELEASE:
If you are a winner in our Contest, the rules of which have been described above, you must accept the terms of this section in order to be entitled to receive a prize. If you are not a winner in our Contest, but we have reached out to you via e-mail for permission to use your photographs along with limited personally identifying information (such as first name and country), and you have expressly provided us with your consent, you do so with sufficient understanding, acknowledgement, and acceptance of the terms in this section.
You grant to us the right to images of you and your property (including any motion picture or still photographs made by you of your likeness, poses, acts and appearances) (the “Images”) provided in connection with the Program.
You hereby irrevocably agree that we may use the Images for any purposes in connection with promoting #fitflyx and its activities (the “Purposes”), which may include advertising, promotion and marketing. We may crop, alter or modify the Images and combine the Images with other images, text, audio recordings and graphics without notifying you. You authorize us to copyright, use and publish the same in print and/or electronically. You hereby waive any and all moral rights you may have in connection with the Images.
You understand that your personal information, including Images of you, is being collected pursuant to section 26 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, for the Purposes. You consent to your name and any other personal information (including, but not limited to first name, city and country of residence, etc.) provided by you to #fitflyx being displayed in connection with the appearance of your Images. You consent to any of your personal Information, including Images of you, being stored, accessed or disclosed outside of Canada.
You release and waive any and all claims that you have or may have in the future against us arising from or related to the use of the Images in accordance with the Program.
You can adjust how your Internet browser (like Chrome or Safari) responds to cookies (e.g., to warn you every time a cookie is sent, or to turn off all cookies). See your browser’s Help menu for these instructions. By disabling your cookies, please understand you will not have access to some of the features that enhance your user experience on the Digital Properties.
#fitflyx does not currently allow third parties to collect personally identifiable information about an individual user’s online activities over time and across different websites when that individual uses the Digital Properties and therefore does not respond to web browser “do not track” signals.
USE BY ADULTS AND TEENAGERS:
#fitflyx offers membership to individuals who are at least 18 years of age. Similarly, the Digital Properties are intended for use by adults, and when we collect information through the Digital Properties for membership inquiry purposes, users are informed they must be at least 18 years of age to provide personally identifying information to us. The Digital Properties are not intended for children under the age of 18, and we do not knowingly collect or store any personal information from children under the age of 18.
THIRD PARTY SITES AND APPS:
While the Digital Properties may contain links to other sites, products or services, please note that when you click on one of these links, you are ‘clicking’ away from the Digital Properties and accessing a third party’s website, app or other digital property. In addition, certain features of the Digital Properties may enable you to connect the Digital Properties to, or otherwise share your information with, Third Party Apps.
Please understand that these third parties may collect information about users which will be used under their privacy policies. We encourage users to read the privacy polices of these third parties, as their practices may differ from ours. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE ARE NOT RESPONSIBLE FOR THE PRIVACY PRACTICES OR THE COLLECTION OR USE OF A USER’S INFORMATION FROM ANY SUCH THIRD PARTIES.
HOW TO CONTACT US:
The Terms were last updated: December 17, 2017