Effective Date: February 19, 2015
Binding Agreement. These Terms constitute a binding agreement between you and OpenFitness LC. dba OpenFitness and its affiliates, OpenFitness.com, and OpenFitness’s mobile application (“OpenFitness,” “We,” “Us”). “You” and “Users” means all visitors to the OpenFitness Service. You accept these Terms each time you access the OpenFitness Service. If you do not accept these Terms, you must not use the OpenFitness Service.
Revisions to Terms. OpenFitness may revise these Terms at any time by posting an updated version to this web page. You should visit this page periodically to review the most current Terms because you are bound by them. Your continued use of the OpenFitness Service after a change to these Terms constitutes your binding acceptance of these Terms.
Children. No part of the OpenFitness Service is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS The OpenFitness Service AT ANY TIME OR IN ANY MANNER. If you are under the age of 18 or the age of majority in your jurisdiction, you may only use the OpenFitness Service under the supervision of a parent, legal guardian, or other responsible adult.
The terms “post” or “posting” as used in these Terms shall mean the act of submitting, uploading, publishing, displaying, or similar action on the OpenFitness Service.
The OpenFitness Service is defined as any website, mobile application, or Internet service under OpenFitness’s control, whether partial or otherwise, in connection with providing the services provided by OpenFitness. The OpenFitness Service provides a platform for finding, booking, reviewing, comparing, and tracking fitness and wellness related classes and services.
Find a Class. You may search for classes and studios and view detailed ratings, reviews, and comments about those classes and studios. The OpenFitness Service may also feature a class or studio as an advertisement, but this is not a recommendation of such class or studio. As stated more fully elsewhere in these Terms, OpenFitness makes no representations as to the quality or nature of studios or classes shown on the OpenFitness Service.
Book a Class. You may book a class using the OpenFitness Service. Booking a class may require you to enter your credit card and billing information. You may be limited to those credit cards accepted by your selected studio.
Rate and Review a Class. You may rate your class using many rating factors, such as Overall Rating, Instructor Rating, Sweat Factor, Tone Factor, Flex Factor and Fun Factor. You may also write a free-text review. The OpenFitness Service may display advertisements and other information adjacent to or included with your ratings, reviews, and comments. You are not entitled to any compensation for such advertisements.
Cancellation and No Show Policies. Studios determine their rescheduling and cancellation policies and apply them at their discretion. You should contact the studios directly, not OpenFitness, for any rescheduling or cancellation questions.
Refunds. Reservations and prepaid services purchased using the OpenFitness Service are non-refundable.
Communications from OpenFitness. By creating an account, you agree to receive certain communications in connection with the Site. For example, you might receive review requests, booking confirmations and friend requests from other Users. You will also receive our e-mail newsletter from time to time. You can opt-out of non-essential communications by clicking the “Unsubscribe from this list” link at the bottom of all non-essential e-mails and entering your e-mail address in the subsequent form.
The OpenFitness Service uses a third-party service provider to provide information about studios and to provide booking and payment processing services. The third-party service provider may charge studios a fee, and a portion of that may be distributed to OpenFitness when you use the OpenFitness Service to book a reservation.
III. OpenFitness’s Content Ownership and Use
The contents of the OpenFitness Service include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other OpenFitness content (collectively, “OpenFitness Content”). All OpenFitness Content is the property of OpenFitness or its licensors and is protected under copyright, trademark, and other laws. The compilation (meaning the collection, arrangement, and assembly) of all OpenFitness Content on the OpenFitness Service is the exclusive property of OpenFitness and is protected by copyright, trademark, and other laws.
License to You. OpenFitness authorizes you, subject to these Terms, to access and use the OpenFitness Service and the OpenFitness Content solely for your personal, non-commercial use. This license is revocable at any time without notice and with or without cause. Unauthorized use of the OpenFitness Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademarks, service marks, and other proprietary notices contained in the original OpenFitness Content on any copy you make of the OpenFitness Content.
OpenFitness Marks. OpenFitness, the OpenFitness logo, and other OpenFitness logos and product and service names are or may be trademarks of OpenFitness (the “OpenFitness Marks”). Without OpenFitness’s prior written permission, and except as solely enabled by any link as provided by OpenFitness, you agree not to display or use in any manner the OpenFitness Marks.
OpenFitness Claims No Ownership. The OpenFitness Service may provide you with the ability to create, post, or share content (“Your User Content”), such as ratings, reviews, comments, photos, and other content. OpenFitness claims no ownership or control over Your User Content. You or a third-party licensor, as appropriate, retain all copyright, patent, and trademark rights to any of the content you post on or through the OpenFitness Service. You are responsible for protecting those rights. You also acknowledge and agree that Your User Content is non-confidential and non-proprietary.
You Acquire No Ownership of Others’ Content. You understand and agree that you will not obtain, as a result of your use of the OpenFitness Service, any right, title, or interest in or to such content delivered via the OpenFitness Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) in the content.
License to OpenFitness. By posting Your User Content on or through the OpenFitness Service, you grant OpenFitness a universal, non-exclusive, royalty-free license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all Your User Content in whole or in part, and in any form, media, or technology, whether now known or hereafter developed for any purpose, including for the purpose of promoting OpenFitness and its services in any media formats and through any media channels. You acknowledge that OpenFitness may choose to provide attribution of Your User Content at our discretion. OpenFitness will discontinue this licensed use within a commercially reasonable period after Your User Content is removed from the OpenFitness Service. OpenFitness reserves the right to refuse to accept, post, display, or transmit any User Content in its sole discretion.
You Must Have Rights to the Content You Post. You represent and warrant that: (i) you own the content posted by you on or through the OpenFitness Service or otherwise have the right to grant the license set forth in these Terms, (ii) the posting and use of Your User Content on or through the OpenFitness Service does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person, and (iii) the posting of Your User Content on the OpenFitness Service does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of content you post on or through the OpenFitness Service.
The OpenFitness Service contains content from Users and other OpenFitness licensors. Except as provided within these Terms, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the OpenFitness Service.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials posted on the OpenFitness Service infringe your copyright, you (or your agent) may send OpenFitness a “Notification of Claimed Infringement” requesting that the material be removed, or access to it blocked. The notice must include the following information:
If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send OpenFitness a counter-notice.
Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA; see https://www.loc.gov/copyright/ for details. Notices and counter-notices with respect to the OpenFitness Service should be sent to OpenFitness LC., 175 Varick St., Floor 4, New York, NY 10014 or legal@OpenFitness.com. Consult your legal advisor and see 17 U.S.C. § 512 before filing a notice or counter-notice as there are penalties for false claims under the DMCA.
OpenFitness appreciates hearing from its Users and welcomes your comments regarding the OpenFitness Service. Please be advised, however, that OpenFitness does not accept or consider creative ideas, suggestions, inventions, or materials (“creative ideas”) other than those which we have specifically requested. While OpenFitness values your feedback on its services, please be specific in your comments and do not submit creative ideas. If, despite this request, you send OpenFitness creative ideas, OpenFitness
VII. User Content Disclaimers, Limitations, and Prohibitions
OpenFitness does not represent or guarantee the truthfulness, accuracy, or reliability of content posted by Users (“User Content”), studios, or other third-party service providers, derivative works from User Content, or any other communications posted by Users. You accept that any reliance on material posted by other Users or third-party service providers will be at your own risk. You also accept the risk that you might be exposed to User Content that is offensive, indecent, objectionable, or otherwise inappropriate.
If you post User Content in any public area of the OpenFitness Service, you also permit any User to access, display, view, store, and reproduce such User Content for personal use. Subject to the foregoing, the owner of such User Content posted on the OpenFitness Service retains any and all rights that may exist in such User Content. You agree that you have read and understood our Content Guidelines.
You agree to use the OpenFitness Service only for its intended purpose. You must use the OpenFitness Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the OpenFitness Service are prohibited. You may not:
You are solely responsible for Your User Content on the OpenFitness Service. OpenFitness does not endorse any, nor is it responsible for, User Content on the OpenFitness Service. You understand that OpenFitness has a zero-tolerance policy on fake ratings, reviews, and comments. You assume all risks associated with Your User Content, including anyone’s reliance on its quality, accuracy, or reliability. You may expose yourself to liability if, for example, Your User Content contains material that is false, intentionally misleading, or defamatory; violates third-party rights; or contains material that is unlawful or advocates the violation of any law or regulation.
Content Guidelines. The following requirements apply to the content you post using the OpenFitness Service.
The ratings, reviews, and comments you post must be:
You may not:
VIII. Your Profile and Log-In Credential Information
To use the Service, you will need to log in with your OpenFitness or third-party website credentials. You are responsible for maintaining the confidentially of your log-in credentials and are fully responsible for all activities that occur through the use of your credentials. You agree to notify OpenFitness immediately if you believe the confidentiality of your login credentials has been compromised or if you suspect unauthorized use of your account. You agree that OpenFitness will not be liable for any loss or damage arising from unauthorized use of your credentials.
You have no expectation of privacy for any of the content you post to the public areas of the OpenFitness Service.
OpenFitness may review and remove any User Content at any time for any reason including without limitation activity which, in its sole judgment: violates these Terms; violates applicable laws, rules, or regulations; is abusive, disruptive, offensive or illegal; or violates the rights of, or harms or threatens the safety of, Users of the OpenFitness Service. For example, we may remove a review that does not conform with our Content Guidelines.
OpenFitness reserves the right to suspend or terminate your account and prevent access to the OpenFitness Service for any reason, at its discretion. The right to suspend or terminate your account and prevent access to the OpenFitness Service is not the sole remedy we may pursue, and we may pursue other rights and remedies.
User Content. OpenFitness does not control User Content and does not have an obligation to monitor it for any purpose. OpenFitness has no obligation to make User Content available through the OpenFitness Service. OpenFitness may choose, in its sole discretion, to monitor, review, or otherwise access some User Content, but OpenFitness assumes no responsibility for doing so. OpenFitness assumes no responsibility for the conduct of Users or other third parties.
OpenFitness reserves the right, in its sole discretion, to remove Your User Content, and OpenFitness does not assume any obligation to remove it. To the extent permitted by law, OpenFitness disclaims any liability for failing to take any such action. To the extent permitted by law, in no event shall OpenFitness be liable for the deletion, loss, or unauthorized modification of any User Content.
Credit Card Payment. OpenFitness may process credit card payments or use third-party service providers to facilitate credit card payments for booking classes. OpenFitness disclaims all liability associated with the security of credit card transactions.
Reservations. OpenFitness reserves the right in its sole discretion to refuse to book classes and may cancel reservations. OpenFitness shall not be liable for this refusal or cancellation.
User Disputes. You release OpenFitness of all claims, demands, and damages in disputes among Users of the OpenFitness Service. You assume all risk associated with dealing with other Users. Use caution and common sense when using the OpenFitness Service.
Content Accuracy. OpenFitness makes no representations about accuracy, reliability, completeness, or timeliness of any contents of the OpenFitness Service, including data from studios and third-party service providers, such as class times, locations, and descriptions. Similarly, OpenFitness makes no representations as to the quality or nature of third-party products or services, in particular the fitness and wellness classes, services, or studios, obtained through the OpenFitness Service. OpenFitness makes no representations and disclaims all liability for how and whether studios, classes, and other services are categorized and displayed on the OpenFitness Service. Use the OpenFitness Service at your own risk.
Third-Party Websites. The OpenFitness Service may include links or interact directly with third-party websites and applications at your direction. You are responsible for evaluating whether you want to access or use them. OpenFitness is not responsible for and does not endorse any features, content, advertising, products, or other materials on other websites or applications. You assume all risk and OpenFitness disclaims all liability arising from your use of them.
Injuries and Medical Problems. The OpenFitness Service does not provide any professional health or medical advice and does not make any determination of whether you have the physical capability to participate in a particular class. The OpenFitness Service does not endorse and has no responsibility for any ratings or reviews that may indicate that you are physically capable of participating in a particular class. Prior to participating in any fitness and wellness program or activity, you should seek the advice of your physician or other qualified health professional. You agree to participate in a class at your own risk, and OpenFitness is not liable for any injuries or other health or medical problems that may result from your participation in a class discovered or booked through the OpenFitness Service.
OpenFitness makes no promises and disclaims all liability of specific results from the use of the OpenFitness Service or the fitness and wellness services you obtain through the OpenFitness Service.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE OPENFITNESS SERVICE IS AT YOUR SOLE RISK, OPENFITNESS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND OPENFITNESS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AND AGENTS, EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY BUSINESSES LISTED ON THE OPENFITNESS SERVICE, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) OPENFITNESS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS MAKE NO WARRANTY THAT (i) THE OPENFITNESS SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE OPENFITNESS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE OPENFITNESS SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE OPENFITNESS SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; OR (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE OPENFITNESS SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. OPENFITNESS EXPRESSLY DISCLAIMS ANY WARRANTY ASSOCIATED WITH PUSH NOTIFICATIONS TO MOBILE DEVICES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT OPENFITNESS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF OPENFITNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE OPENFITNESS SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE OPENFITNESS SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE OPENFITNESS SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE OPENFITNESS SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
TO THE FULLEST EXTENT POSSIBLE BY LAW, OPENFITNESS’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE OPENFITNESS SERVICE OR YOUR USE OF OPENFITNESS’S CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.
You further agree and understand that OpenFitness has no liability for the loss of any information you may choose to store in your OpenFitness account, your computer, or your mobile device, in the event your computer or mobile device is lost or stolen.
You agree to defend, indemnify, and hold harmless OpenFitness, its affiliates, and their respective officers, directors, employees, and agents, from and against any claims, actions, or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from (i) any User Content or other material you provide to the OpenFitness Service, (ii) your use of any OpenFitness Content, or (iii) your breach of these Terms. OpenFitness shall provide notice to you promptly of any such claim, suit, or proceeding.
XII. General Terms
These Terms constitute the entire agreement between you and OpenFitness concerning your use of the OpenFitness Service. The failure of OpenFitness to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles in these Terms are for convenience only and have no legal or contractual effect.
XIII. Arbitration, Class Waiver, and Waiver of Jury Trial
These Terms and the relationship between you and OpenFitness shall be governed by the laws of the state of New York without regard to its conflict of law provisions. You and OpenFitness agree to submit to the personal and exclusive arbitration of any disputes relating to your use of the OpenFitness Service under the rules of the American Arbitration Association. Any such arbitration, to the extent necessary, shall be conducted within the county of New York in the state of New York. You covenant not to sue OpenFitness in any other forum.
You also acknowledge and understand that, with respect to any dispute with OpenFitness, its officers, directors, employees, agents, or affiliates, arising out of or relating to your use of the Service or this Agreement:
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