If You are a new Subscriber, then this Subscription Agreement will be effective as of July 22, 2021. If You are an existing Subscriber, We are providing You with prior notice of these changes which will be effective as of August 22, 2021.
PLEASE READ CAREFULLY: THIS AGREEMENT CONSTITUTES A BINDING CONTRACT AND GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES BY YOU WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY ACCESSING OR USING A SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AS OF THE DATE OF SUCH ACCESS OR USE OF THE SERVICE (THE “EFFECTIVE DATE”). If You do not agree with this Agreement, You must not accept this Agreement and may not use the Services.
The terms “Subscriber,” “You,” “Your” shall refer to You.
Table of Contents
- General Conditions; Access To and Use of the Services
- Data Security, Privacy and Sharing
- Intellectual Property Rights
- Third Party Services
- Billing, Plan Modifications and Payments
- Promotional Credits Policy
- Cancellation, Termination and Renewal
- Representations, Warranties and Disclaimers
- Limitation of Liability
- Assignment, Entire Agreement and Amendment
- Export Compliance and Use Restrictions
- Relationship of the Parties
- Dispute Resolution
- How to Contact Us
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber in regard to the Services.
API: means the application programming interfaces developed and enabled by Life Fitness that permit Subscribers to access certain functionality provided by the Services.
Applicable Data Protection Law: means all laws concerning data protection and data privacy that are applicable to the Parties, including but not limited to the EU General Data Protection Regulation 2016/679 (“GDPR”), California Consumer Privacy Act of 2018 (codified at Cal. Civ. Code Section 1798.100, et seq.) (CCPA) and its implementing regulations, as amended from time-to-time.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service to which You subscribe, including, without limitation, integrations and applications created or developed by Life Fitness or its Affiliates, including Halo Fitness Cloud, and made available in the marketplace (available at https://www.halo.fitness), which will be governed by this Agreement unless Life Fitness otherwise communicates a different agreement to You at the time of Your deployment of or access to the integration or application. For avoidance of doubt, none of the Services or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms shall be deemed an Associated Service.
Beta Services: means a product, service or functionality provided by Life Fitness that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Services or describing Services, as applicable, provided or made available by Life Fitness to You in the applicable Life Fitness help center(s), Site; provided, however, that Documentation shall specifically exclude any “community moderated” forums as provided or accessible through such knowledge base(s).
EEA: means the European Economic Area, Switzerland and United Kingdom.
GDPR: means EU General Data Protection Regulation 2016/679.
Login: means a unique username and associated password provisioned to an identifiable individual to permit them to access the Services.
Payment Agent: means Life Fitness, LLC or a payment agent designated by Life Fitness.
Personal Data: means any information relating to You where You can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person and including Sensitive Personal Data that is Processed by Life Fitness.
Personnel: means employees and/or non-employee service providers and contractors of Life Fitness engaged by Life Fitness in connection with performance hereunder.
Processing/To Process/Processed: means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Sensitive Personal Data: means information that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, genetic data, biometric data, data concerning health and data concerning a natural person’s sex life or sexual orientation
Service(s): means the products and services that are ordered by You online through a link referencing this Agreement, whether on a trial or paid basis, and made available online by Us, via the applicable subscriber login link and other web pages designated by Us, including, individually and collectively, the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or which You have subscribed that are provided under this Agreement. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent Subscriber is given access to such Service as so described by virtue of prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
User Content: means electronic data, text, messages, communications, images, music, audio, video, or other materials submitted, posted, upload, linked to or stored (collectively, “Post(ed)”)within a Service by You in connection with Your use of such Service, which may include, without limitation, other works subject to protection under intellectual property laws of the United States or any other jurisdiction.
Site: means a website operated by Life Fitness, including www.LifeFitness.com, as well as all other websites that Life Fitness operates.
Software: means software provided by Life Fitness (either by download or access through the Internet) that allows You to use any functionality in connection with the applicable Service.
Sub-processor: means any third party data engaged by Life Fitness, including its Affiliates, that receives User Content from Life Fitness for Processing on behalf of Life Fitness.
Subscription Term: means the period during which You have agreed to subscribe to a Service.
Third Party Services: means third party products, applications, services, software, networks, systems, directories, websites, databases and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including, without limitation, Third Party Services which may be integrated directly into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means Life Fitness as defined below.
Life Fitness: means Life Fitness, LLC.
- GENERAL CONDITIONS; ACCESS TO AND USE OF THE SERVICES
2.1 Service. During the Subscription Term and subject to compliance by You with this Agreement, You have the limited license to the Service, i.e., limited right to access and use a Service (“Service License”), consistent with the Service(s) that You subscribe to. We will (a) make the Services and User Content available to You pursuant to this Agreement ; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), pandemic or epidemic, diseases, quarantines, unavoidable casualties, acts of any civil or military authority; riot, insurrections, and civil disturbances; war, invasion, act of foreign enemies, hostilities (regardless of whether or not war is declared), rebellion, revolution, terrorist activities; government sanction; fire, laws, statutes, regulations, and other legal requirements, orders or judgments; acts or order of any government or agency or official thereof, other catastrophes or any other similar occurrences, Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”). Life Fitness reserves the right to monitor and periodically audit Your use of the Services to ensure that Your use complies with this Agreement. Should Life Fitness discover that Your use of a Service is not in compliance with this Agreement, Life Fitness reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.2 Description. The Service provides You with the opportunity to take on-demand workout classes (each, a “Class”) and receiving coaching solely for Your personal use. Classes are available for a variety of skill levels, for a variety of activities, and for varying durations. Not all classes will be available in perpetuity and Classes are subject to change at any time with or without notice and without any liability to You.
2.3 System Requirements. A high speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network or mobile device to the Services including, but not limited to, Internet access, and browser software that supports protocols used by Life Fitness. We are not responsible for notifying You of any upgrades, fixes or enhancements to any such software or for any compromise of data, including User Content, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Life Fitness. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.4 Restrictions. In addition to complying with the other terms, conditions and restrictions set forth in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party; (b) use the Services to Process data on behalf of any third party; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Life Fitness, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store, display or transmit files, materials, data, text, images, music, audio, video, or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity, security, availability, stability or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly Post User Content or any content that is unlawful, racist, hateful, abusive, bullying, harassing, libelous, defamatory, obscene, offensive, harmful, shocking, threatening, violent, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Life Fitness; (l) use the Services to knowingly Post any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.5 Compliance. As between You and Life Fitness, You are responsible for compliance with the provisions of this Agreement and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to Post User Contract is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Access to and use of the Services is restricted to the specified location designated and permitted under Your subscription to the applicable Service. You are responsible for maintaining the confidentiality of all Login information for Your Account. Life Fitness reserves the right to periodically verify that Your use of the Services complies with this Agreement. Should Life Fitness discover that Your use of a Service is not in compliance with this Agreement, Life Fitness reserves the right to charge You, and You hereby agree to pay, for said usage in addition to other remedies available to Us.
2.6 Changes to the Service. You acknowledge that Life Fitness may modify the features and functionality of the Services during the Subscription Term.
2.7 Eligibility. The Service is not for persons under the age of 13 (or under 16 for individuals in the European Union) or for any users previously suspended or removed from the Service by Life Fitness. IF YOU ARE UNDER 13 YEARS OF AGE (or under 16 in the EU), YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By accessing or using the Service, You affirm that either You are at least 18 years of age or You have been authorized to use the Service by Your parent or legal guardian who is at least 18 years of age.
2.8 Free Trial. If You register for a free trial for any of the Services, We will make such 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(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Us in Our sole discretion. 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. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase. ANY USER CONTENT YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH USER CONTENT, BEFORE THE END OF THE TRIAL PERIOD.
2.9 Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Our reservation of rights and Your obligations concerning the Service, and use of any Third-Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.10 User Content. You have the ability to Post certain User Content to the Service. We do not pre-screen any User Content, but reserve the right to remove, disallow, block, or delete any User Content in Our sole discretion that violates this Agreement. We do not guarantee the accuracy, integrity, appropriateness, availability, or quality of any User Content. You represent and warrant that: (i) You own the User Content Posted by You to the Service(s) or otherwise have the right to grant the license set forth in this Agreement; (ii) the Posting and use of Your User Content to the Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; (iii) the Posting of Your User Content to the Service will not 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 (iv) the Posting of Your User Content to the Service does not result in a breach of contract between You and a third party. While You retain ownership of any rights You may have in Your User Content, You grant Us an unrestricted, assignable, sublicensable, revocable, royalty-free license to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, and otherwise exploit and use all or any part of the User Content by any means and through any media and formats now known or hereafter developed, for the purposes of displaying the User Content to You and providing the Services.
2.11 Life Fitness Content. Except for User Content, the content that Life Fitness provides to You on or through the Service, including without limitation, any classes, text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Life Fitness or its third party licensors (collectively, the “Life Fitness Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, post, modify, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service without prior express written permission of the owner of such material or as permitted by the Service’s intended functionalities. Your use of Life Fitness Content must be in compliance with applicable law. Life Fitness reserves all rights on the part of its licensors; users are not permitted to infringe the rights of the copyright owners of the sound recordings included on the Service or any musical works embodied therein (collectively “Music”). Classes are offered for individual use only by a single user per Account and You are not granted any commercial, sale, resale, reproduction, distribution or promotional use rights for the Music used with any Classes. The unauthorized reproduction or distribution of the Music is expressly prohibited and may violate applicable law and subject You to liability for copyright infringement.
2.12 Notice Regarding Apple. You acknowledge that this Agreement is between You and Us only, not with Apple, and Apple is not responsible for the Service(s) or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service(s). In the event of any failure of the Service(s) to conform to any Documentation, then You may notify Apple and Apple will refund the purchase price for the relevant Service(s) to You; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service(s). Apple is not responsible for addressing any claims by You or any third party relating to the Service(s) or Your use of the Service(s), including, but not limited to: (i) product liability claims; (ii) any claim that the Service(s) fails to conform to any applicable legal or regulatory requirement; and (iii) 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(s) or Your use of the Service(s) infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service(s). Apple its subsidiaries are third party beneficiaries of this Agreement, and upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against You as a third party beneficiary of this Agreement.
- CONFIDENTIALITY; DATA SECURITY, PRIVACY AND SHARING
3.1 Confidential Information. Subject to the express permissions of this Agreement, Life Fitness will protect Your Personal Data from unauthorized use, access or disclosure in compliance with Applicable Data Protection Law. Except as otherwise expressly permitted pursuant to this Agreement, Life Fitness may use Your Personal Data solely to exercise Our respective rights and perform Our respective obligations under this Agreement and shall disclose such Personal Data (a) solely to the employees and/or third party service providers who have a need to know such Personal Data to assist Life Fitness with providing the Service and who are bound to maintain the confidentiality of, and not misuse, such Personal Data; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation.
3.2 Sharing & Purposes. You agree to share with Life Fitness Your Personal Data and to transfer Your Personal Data to Life Fitness. Life Fitness will use and Process the Personal Data for the following purposes: (i) providing the Services and Associated Services to You, (ii) any of the purposes specified in Section 3.10 below, provided that Personal Data is Processed in aggregated, encoded or anonymized form for such purposes, (iii) marketing and advertising of products and services of Life Fitness and fitness related products and services by third parties, including but not limited to behavioural advertising and direct marketing communication by e-mail or other electronic means, and (iv) any other purpose You and Life Fitness may expressly agree on from time to time. For marketing and advertising purposes, Life Fitness may build customer profiles of You based on Your Personal Data and other information collected from other legitimate sources and may use automated individual decision making.
3.4 Consent. Life Fitness uses the Personal Data only if and insofar as You have consented to the use and the transmission and Processing of the Personal Data for the named purposes. YOU CONSENT TO LIFE FITNESS SENDING YOU DIRECT MARKETING COMMUNICATION THROUGH E-MAIL AND OTHER ELECTRONIC MEDIA AND, WHERE NECESSARY, THE CONSENT TO AUTOMATED INDIVIDUAL DECISION MAKING INCLUDING PROFILING, AND YOU MUST NOTIFY LIFE FITNESS PROMPTLY OF ANY REVOCATION OR WITHDRAWAL OF SUCH CONSENT. You represent and warrant that the Personal Data originate in a legitimate data application.
3.5 Subscriber as Controller. Without limiting the generality of Section 2.5, You and Life Fitness are each independently and solely responsible for compliance with Applicable Data Protection Law for their own use of the Personal Data. Each is a “Controller” in this respect.
3.7 If Personal Data originates in the EEA, We will ensure, pursuant to Applicable Data Protection Law that, if Personal Data is transferred to a country or territory outside of the EEA (a “non-EEA country”), that such transfer will only take place if: (a) the non-EEA country in question is approved by the European Commission as providing adequate protection pursuant to Article 45 of the GDPR; (b) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (c) one of the conditions listed in Article 49 of the GDPR (or its equivalent under any successor legislation) is satisfied.
3.8 Access. You agree that Life Fitness and the third party service providers that are utilized by Life Fitness to assist in providing the Services to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Personal Data or User Content to the extent necessary to provide the Services, including, without limitation, in response to Your support requests. Any third party service providers utilized by Life Fitness will only be given access to Your Account and Personal Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.2; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.
3.9 Processing. We may Process Personal Data in the following ways:
(c) We receive and store any information that You knowingly provide to Us. For example, through the registration process for Our Services and/or through Your Account settings, We may collect Personal Data such as Your name, email address, phone number, credit card information and third party account credentials (for example, Your log-in credentials for third party sites that integrate with the Services) of You.
(d) You acknowledge and agree that Life Fitness may use Sub-processors who may Process Personal Data and access User Content to provide, secure and improve the Services.
3.10 Sharing With Third Parties. We may share Your Personal Data with third parties in the following ways:
a. Collecting Usage Data. For the purposes of this section, “Usage Data” means aggregated, encoded or anonymized data that Life Fitness may collect about a group or category of services, features or users while You use a Service for certain purposes, including analytics, which is used to help understand trends in usage of the Services. In addition to collecting and using Usage Data ourselves, Life Fitness may share the Usage Data with third parties, including Our business partners and service providers, for various purposes, including to help Us better understand Our subscribers’ needs, provide You with targeted marketing and improve Our Services. We may also publish Usage Data to provide relevant information about the Services and for purposes of marketing.
b. Aggregated Personal Data that is not personally identifiable. We may anonymize Your Personal Data so that You cannot be individually identified, and publish this anonymized information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights. We may also provide Your anonymized Personal Data and aggregated usage information to Our partners for analytics purposes, who may use such information to help Us understand how often and in what ways people use Our Services.
3.11 Communication. We may communicate with You. For example, We may send You product announcements and promotional offers or contact You about Your use of the Services. If You do not want to receive communications from Us, please indicate this preference by sending an email to firstname.lastname@example.org and provide Us with Your name and email address that You no longer wish to receive these communications.
- INTELLECTUAL PROPERTY RIGHTS
4.1 Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Life Fitness and belong exclusively to Life Fitness.
4.2 Life Fitness shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate Your User Content into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You. Life Fitness reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by suggestions, enhancement requests, recommendations or other feedback We receive from You.
4.3 Life Fitness’ other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of one or more members of Life Fitness (collectively, “Marks”), and You may not use applicable Marks in any manner.
- THIRD PARTY SERVICES
If You decide to enable, access or use Third Party Services, be advised that Your access and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or Process data (including User Content) or any interaction between You and the provider of such Third-Party Services. We cannot guarantee the continued availability of such Third-Party Service features, and may cease enabling access to them without entitling You to any refund, credit, or Third-Party compensation, if, for example and without limitation, the provider of an Third-Party Service ceases to make the Third-Party Service available for interoperation with the corresponding Service in a manner acceptable to Us. You irrevocably waive any claim against Life Fitness with respect to such Third-Party Services. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Third-Party Services, or Your reliance on the privacy practices, data security processes or other policies of such Third-Party Services. You may be required to register for or log into such Third-Party Services on their respective websites. By enabling any Third-Party Services, You are expressly permitting Life Fitness to disclose Your Login, as well as User Content as necessary to facilitate the use or enablement of such Third-Party Services.
- BILLING, PLAN MODIFICATIONS AND PAYMENTS
6.1 Payment and Billing. All charges associated with Your access to and use of a Service (plus any applicable taxes and other charges) (“Subscription Charges”) are due in full upon commencement of Your Subscription Term. You hereby authorize Us to charge Your specified payment method on a monthly basis for a Subscription Term of monthly or an annual basis for all other Subscription Terms, in advance, for the Service(s) and/or to place a hold on Your payment method with respect to any unpaid charges for the Service(s). Your failure to terminate and/or continued use of the Service reaffirms that We are authorized to charge You for that Subscription Term. If You fail to pay Your Subscription Charges within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of such Service by You.
6.2 Upgrades. If You choose to upgrade Your Service(s) (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.
6.3 Downgrades. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Service. Downgrading Your Service may cause loss of content, features, or capacity of the Service as available to You under Your Account, and Life Fitness does not accept any liability for such loss.
6.4 Taxes. Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes, except those assessable against Life Fitness measured by its net income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.
6.5 Payment Agent. If You pay by credit card or certain other payment instruments, the Services provide an interface for the Account owner to change credit card information (e.g. upon card renewal). Payments made by credit card or certain other payment instruments for the Services are billed and processed by Life Fitness’ Payment Agent. You hereby authorize the Payment Agent to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of this Agreement for the Services until Your subscription to the Services terminates, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Life Fitness and the Payment Agent to charge Your credit card or other payment instrument to establish such prepaid credit. The Account owner will receive a receipt upon each receipt of payment by the Payment Agent, or they may obtain a receipt from within the Services to track subscription status. You agree to promptly update Your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. To the extent the Payment Agent is not Life Fitness, the Payment Agent is acting solely as a billing and processing agent for and on behalf of Life Fitness and shall not be construed to be providing the applicable Service. The Payment Agent uses a third party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Agent.
- PROMOTIONAL CREDITS POLICY
We may, at Our sole discretion, choose to offer credits for the Services in various ways, including but not limited to, coupons, promotional campaigns and referrals for Life Fitness services such as training. Life Fitness reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the applicable Service. Credits may only be applied to Subscription Charges due for the Service specifically identified by Life Fitness when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, credits shall expire and no longer be redeemable twelve (12) months from the date the credit was issued.
- CANCELLATION, TERMINATION AND RENEWAL
8.1 Cancellation and Renewal. Either Party may elect to terminate Your Account and subscription to a Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, at least 24 hours prior to the end of the current Subscription Term. Unless Your Account and subscription to a Service is so terminated, Your subscription to a Service will automatically renew for a Subscription Term equivalent in length to the then expiring Subscription Term. The Subscription Charges applicable to Your subscription to a Service for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Service to which You have subscribed, as applicable, and Your account will be charged for renewal within 24 hours prior to such subsequent Subscription Term commences.
8.2 No Refunds. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your Account prior to the end of Your then effective Subscription Term, unless You make such refund request in writing within fifteen (15) days of subscribing to the Service.
8.3 Payment Upon Termination. Except for Your termination under Section 8.5, if You terminate Your subscription to a Service or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2, 8.4 and 8.5, in addition to other amounts You may owe Life Fitness, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to a Service or cancel Your Account as a result of a material breach of this Agreement by Life Fitness, provided that You provide advance notice of such breach to Life Fitness and afford Life Fitness not less than thirty (30) days to reasonably cure such breach as provided for in Section 8.6 herein.
8.4 Suspension or Termination. We reserve the right to modify, suspend or terminate the Services (or any part thereof), Your Account and remove, disable and discard any User Content or other content stored or uploaded by You if We believe that You have violated this Agreement or We suspect or detect any Malicious Software connected to Your Account or use of a Service by You. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You may be referred to law enforcement authorities at Our sole discretion.
8.5 Termination for Cause. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If You purchased Services directly (and not through a Reseller), then: (i) if this Agreement is terminated by You in accordance with this section, We will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination; or (ii) if this Agreement is terminated by Us in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
8.6 Export of User Content. Upon request by You made within thirty (30) days after the effective date of termination or expiration of this Agreement, We will make User Content available to You for export or download if requested. After such 30-day period, We will have no obligation to maintain or provide any User Content will have the right to delete or destroy all copies of User Content in Our systems or otherwise in Our possession or control, unless prohibited by law.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 We warrant that during an applicable Subscription Term: (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Personal Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty, Your exclusive remedies are those described in Section 8.5 herein.
9.3 We and Our affiliates, officers, directors, employees, agents, service providers, suppliers and licensors disclaim any liability to You or any third party for any configurations or customizations made to a Service by or for You (unless made by Us) or any User Content You enter into a Service.
9.4 EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 9.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9.5 YOU ASSUME ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE SERVICES, WHETHER IN TERMS OF GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY US, BY WAY OF ADVICE OR OTHERWISE, RELATED TO THE USE OF THE SERVICES.
10. LIMITATION OF LIABILITY
10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA YOUR SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF LIFE FITNESS), BUSINESS INTERRUPTION, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, LIFE FITNESS’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR THE SERVICES SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU TO LIFE FITNESS WITH RESPECT TO YOUR SUBSCRIPTION TO SUCH SERVICE) DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.
10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, LIFE FITNESS’ LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.4 Any claims or damages that You may have against Life Fitness shall only be enforceable against Life Fitness and not any other entity or its officers, directors, representatives or agents of Life Fitness.
11.1 You will defend, indemnify and hold Life Fitness harmless against any claim, actions or demands arising or resulting from (a) Your activities on the Service; (b) use of a Service by You in breach of this Agreement; or (c) allegation that Your use of the Service or User Content that You upload or post to the Service infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret.
12. ASSIGNMENT, ENTIRE AGREEMENT AND AMENDMENT
12.1 Assignment. You may not assign this Agreement or Your rights under this Agreement without Our prior consent. We may assign Our rights, obligations and/or this Agreement at any time in Our sole discretion without notice to You. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
Notwithstanding the foregoing, You may be presented with additional features, functionality, or services as detailed in a supplement hereto or that We offer as part of or distinct from the Services (the “Additional Features”). In those instances, We will notify You of such Additional Features prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Features. All such Additional Features will be considered incorporated into this Agreement when You activate the feature, functionality, or service.
12.3 Modification. You understand and agree that we may change this Agreement at any time without prior notice , in which case the updated Agreement will be posted on Our Site and supersede prior versions. Modification will become effective at the time of posting on Our Site unless specified otherwise. Your continued use of the Services after We have posted the updated Agreement may be relied upon by Us as Your consent to any such modifications. If You don’t agree to be bound to the updated Agreement, then You may not use the Service. Our failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- EXPORT COMPLIANCE AND USE RESTRICTIONS
The Services and other Software or components of the Services that We may provide or make available to You may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Services, Software and such other components by You. You shall not access or use the Services if You are located in any jurisdiction in which the provision of the Services, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Services to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not access or use the Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You are located.
- RELATIONSHIP OF THE PARTIES
This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
You consent to receive all communications including notices, agreements, disclosures, or other information from Life Fitness electronically and agree that We may communicate with You by email or by posting to the Service. All notices to Life Fitness, may be delivered in writing by nationally recognized overnight delivery service (“Courier”) or certified mail to:
10601 Belmont Avenue
Franklin Park, IL 60131 U.S.A.
Attn: Law Department
- DISPUTE RESOLUTION
If You have any dispute with or claim against Life Fitness (a “Claim”) arising out of or relating to the Service, this Agreement, any product acquired through the Service, or any communications between You and Us relating to the Service and before You commence an arbitration or file a small claims court action with respect to Your Claim, You must first send written notice of Your claim (“Notice”) by contacting Us at the contact information provided in the “How to Contact Us” section of this Agreement. The Notice must (1) comply with the “Notice” section of this Agreement; (2) describe the nature of Your Claim; and (3) specify the damages or other relief You seek.
If Your Claim is not resolved through the Notice, You and Life Fitness each agree to resolve such disputes through an individual binding arbitration under the Federal Arbitration Act or an individual action in small claims court. By virtue of this Section 13, YOU AND LIFE FITNESS ARE EACH GIVING UP THE RIGHT TO GO TO COURT AND HAVE A CLAIM HEARD BY A JUDGE OR JURY, EXCEPT IN SMALL CLAIMS COURT, OR TO PARTICIPATE IN A CLASS ACTION.
Any such arbitration will be administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to its rules, including, without limitation, the AAA’s Consumer Arbitration Rules, available at https://www.adr.org or by calling 800-778-7879 . The arbitrator will apply and be bound by this Agreement, apply applicable law and the facts, and issue a reasoned award. In circumstances in which the applicable rules provide for an in-person hearing, such hearing will, at Your request, take place in the U.S. county (or parish) of Your residence, or otherwise in Chicago, Illinois.
YOU AND LIFE FITNESS 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 Life Fitness 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.
This Section 13 shall survive termination of Your use of the Services. Except as otherwise provided in this Agreement, if Life Fitness’ makes any future change to this arbitration provision, other than a change to Life Fitness’ address for Notice, then You may reject the change by sending Us written notice within 30 days of the change to Life Fitness’ address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes You rejected, will continue to govern any disputes between You and Life Fitness. If this paragraph is found to be unenforceable or if the entirety of this Section 13 is found to be unenforceable, then the entirety of this Section 13 will be null and void.
The Service is controlled by Life Fitness from its offices located within the United States of America. The laws of the State of Illinois govern this Agreement and use of the Service. If the Service is accessed from a location outside of the United States, it is done at Your sole risk and discretion with the understanding that laws applicable in a foreign location may not be applicable to the Service.
Sections 1, 3.1, 4 and 9-20 shall survive any termination of Our agreement with respect to use of the Services by You. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
- HOW TO CONTACT US
Questions or comments about this Agreement may be directed to:
- e-mail: email@example.com
- Phone: 1-800-735-3867
- mail: Life Fitness, Attn: Law Department, 10601 Belmont Avenue, Franklin Park, IL 60131 USA
You hereby represent and warrant that (i) 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 (ii) You are not listed on any U.S. Government list of prohibited or restricted parties. If We provides a translation of the English language version of this Agreement, the translation is provided solely for convenience, and the English version will prevail.