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END USER TERMS OF USE
Last Updated: August 22, 2020
PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN
IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.
THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE
JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE
LAWS AND REGULATIONS.
FitnessbyRita.com (“FitnessbyRita”, “we”, “us” or “our”)
does not provide medical, fitness or other advice. You participate in exercise
activities entirely at your own risk.
IMPORTANT NOTICE:
By downloading, accessing or using the Application or
Services (as each are defined below) you agree to the terms of these Terms
which will bind you. The Terms include, in particular, the privacy policy
defined in Section 1 and limitations on liability in Section 5.
1. CONTRACTUAL RELATIONSHIP
These Terms of Use (“Terms”) govern the access or
use by you, an individual, from within the United States and its territories
and possessions, or any other country or territory worldwide, of applications,
websites, content, products, and services (the “Services”) made
available by FitnessbyRita. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING
OR USING THE SERVICES. In these Terms, the words “including” and
“include” mean “including, but not limited to.”
Your access and use of the Services constitutes your
agreement to be bound by these Terms, which establishes a contractual
relationship between you and FitnessbyRita. If you do not agree to these Terms,
you may not access or use the Services. These Terms expressly supersede prior
agreements or arrangements with you. FitnessbyRita may immediately terminate
these Terms or any Services with respect to you, or generally cease offering or
deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as
policies for a particular event, activity or promotion, and such supplemental
terms will be disclosed to you in connection with the applicable Service(s). Supplemental
terms are in addition to, and shall be deemed a part of, the Terms for the
purposes of the applicable Service(s). Supplemental terms shall prevail over
these Terms in the event of a conflict with respect to the applicable Services.
FitnessbyRita may amend the Terms related to the Services
from time to time. Amendments will be effective upon FitnessbyRita’s posting of
such updated Terms at this location or the amended policies or supplemental
terms on the applicable Service(s). Your continued access or use of the
Services after such posting constitutes your consent to be bound by the Terms,
as amended.
You agree and consent to our collection and use of personal
information in connection with the Services, as provided in FitnessbyRita’s
Privacy Policy located at https://fitnessbyrita.com/?page_id=3
2. THE SERVICES
The Services constitute a technology platform that enables
users of FitnessbyRita’s mobile application or website (each, an
“Application”) to view workout routines or other materials. Unless
otherwise agreed by FitnessbyRita in a separate written agreement with you, the
Services are made available solely for your personal, noncommercial use. YOU
ACKNOWLEDGE THAT FITNESSBYRITA DOES NOT PROVIDE PHYSICAL SERVICES OR FUNCTION
AS A PERSONAL TRAINER. TO THE EXTENT
THAT FITNESSBYRITA PROPOSES WORKOUT ROUTINES OR PHYSICAL TRAINING INTENDED TO
BE PERSONALIZED TO YOUR FITNESS GOALS, YOU AGREE THAT FOLLOWING, ADOPTING OR
EXECUTING SUCH WORKOUT ROUTINES OR PHYSICAL TRAINING IS ENTIRELY AT YOUR RISK
AND THAT YOU SHOULD CONSULT A PHYSICIAN PRIOR TO INITIATING ANY FITNESS RELATED
ACTIVITIES OR PROCEED AT YOUR OWN RISK.
LICENSE.
Subject to your compliance with these Terms, FitnessbyRita
grants you a limited, non-exclusive, non-sublicensable, revocable,
non-transferrable license to: (i) access and use the Applications on your personal
device solely in connection with your use of the Services; and (ii) access and
use any content, information and related materials that may be made available
through the Services, in each case solely for your personal, noncommercial use.
Any rights not expressly granted herein are reserved by FitnessbyRita.
RESTRICTIONS.
You may not: (i) remove any copyright, trademark or other
proprietary notices from any portion of the Services; (ii) reproduce, modify,
prepare derivative works based upon, distribute, license, lease, sell, resell,
transfer, publicly display, publicly perform, transmit, stream, broadcast or
otherwise exploit the Services except as expressly permitted by FitnessbyRita;
(iii) decompile, reverse engineer or disassemble the Services except as may be
permitted by applicable law; (iv) link to, mirror or frame any portion of the
Services; (v) cause or launch any programs or scripts for the purpose of
scraping, indexing, surveying, or otherwise data mining any portion of the
Services or unduly burdening or hindering the operation and/or functionality of
any aspect of the Services; or (vi) attempt to gain unauthorized access to or
impair any aspect of the Services or its related systems or networks.
PROVISION OF THE SERVICES.
You acknowledge that portions of the Services may be made
available under FitnessbyRita’s brand or request options associated with
physical training, including the personalized training brand currently referred
to as “FitnessbyRita” or “Fitness by Rita”. You also acknowledge that
the Services may be made available under such brands or request options by or
in connection with: certain of FitnessbyRita’s affiliates.
THIRD PARTY SERVICES AND CONTENT.
The Services may be made available or accessed in connection
with third party services and content (including advertising) that FitnessbyRita
does not control. You acknowledge that different terms of use and privacy
policies may apply to your use of such third party services and content. FitnessbyRita
does not endorse such third party services and content and in no event shall FitnessbyRita
be responsible or liable for any products or services of such third party
providers. Additionally, Apple Inc. will be a third-party beneficiary to this contract
if you access the Services using Applications developed for Apple iOS. This
third party beneficiary is not party to this contract and is not responsible
for the provision or support of the Services in any manner. Your access to the
Services using these devices is subject to terms set forth in the applicable
third party beneficiary’s terms of service.
OWNERSHIP.
The Services and all rights therein are and shall remain FitnessbyRita’s
property or the property of FitnessbyRita’s licensors. Neither these Terms nor
your use of the Services convey or grant to you any rights: (i) in or related
to the Services except for the limited license granted above; or (ii) to use or
reference in any manner FitnessbyRita’s company names, logos, product and
service names, trademarks or services marks or those of FitnessbyRita’s
licensors.
3. YOUR USE OF THE SERVICE
I. USER REQUIREMENTS AND CONDUCT.
The Service is not available for use by persons under the
age of 18. You may not allow persons under the age of 18 to receive
personalized workouts or training from Third Party Providers unless they are
monitored by you. You agree to comply with all applicable laws when using the
Services, and you may only use the Services for lawful purposes. You will not
in your use of the Services cause nuisance, annoyance, inconvenience, or
property damage, whether to the Third Party Provider or any other party.
II. USER PROVIDED CONTENT.
FitnessbyRita may, in FitnessbyRita’s sole discretion,
permit you from time to time to submit, upload, publish or otherwise make
available to FitnessbyRita through the Services textual, audio, and/or visual
content and information, including commentary and feedback related to the
Services, initiation of support requests, and submission of entries for
competitions and promotions (“User Content”). Any User Content
provided by you remains your property. However, by providing User Content to FitnessbyRita,
you grant FitnessbyRita a worldwide, perpetual, irrevocable, transferrable,
royalty-free license, with the right to sublicense, to use, copy, modify,
create derivative works of, distribute, publicly display, publicly perform, and
otherwise exploit in any manner such User Content in all formats and distribution
channels now known or hereafter devised (including in connection with the
Services and FitnessbyRita’s business and on third-party sites and services),
without further notice to or consent from you, and without the requirement of
payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole
and exclusive owner of all User Content or you have all rights, licenses,
consents and releases necessary to grant FitnessbyRita the license to the User
Content as set forth above; and (ii) neither the User Content nor your
submission, uploading, publishing or otherwise making available of such User
Content nor FitnessbyRita’s use of the User Content as permitted herein will
infringe, misappropriate or violate a third party’s intellectual property or
proprietary rights, or rights of publicity or privacy, or result in the
violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory,
libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise
offensive, as determined by FitnessbyRita in its sole discretion, whether or
not such material may be protected by law. FitnessbyRita may, but shall not be
obligated to, review, monitor, or remove User Content, at FitnessbyRita’s sole
discretion and at any time and for any reason, without notice to you.
III. NETWORK ACCESS AND DEVICES.
You are responsible for obtaining the data network access
necessary to use the Services. Your mobile network’s data and messaging rates
and fees may apply if you access or use the Services from a wireless-enabled
device. You are responsible for acquiring and updating compatible hardware or
devices necessary to access and use the Services and Applications and any
updates thereto. FitnessbyRita does not guarantee that the Services, or any portion
thereof, will function on any particular hardware or devices. In addition, the
Services may be subject to malfunctions and delays inherent in the use of the
Internet and electronic communications.
5. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.
I. DISCLAIMER.
WE, OUR AFFILIATES, OUR PARTNERS, AND OUR AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, OR LICENSORS,
MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE CONTENT (INCLUDING THE USER
CONTENT), INCLUDING BUT NOT LIMITED TO ITS ACCURACY, RELIABILITY, COMPLETENESS,
TIMELINESS, OR RELIABILITY.
IF YOU CHOOSE TO USE THE SERVICES, YOU DO SO AT YOUR SOLE
RISK. FITNESSBYRITA EXPLICITLY DISCLAIMS
ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT
OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR
USAGE OF TRADE. FITNESSBYRITA MAKES NO WARRANTY THAT THE SITE, APPLICATION,
SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED,
SECURE, OR ERROR-FREE BASIS.
THE SERVICES ARE PROVIDED “AS IS” AND “AS
AVAILABLE.” FITNESSBYRITA DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES,
EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. IN ADDITION, FITNESSBYRITA MAKES NO REPRESENTATION, WARRANTY,
OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR
AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE
OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FITNESSBYRITA
DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY
PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE
SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS
SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
II. LIMITATION OF LIABILITY.
1. FITNESSBYRITA
SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR
PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY
USE OF THE SERVICES, EVEN IF FITNESSBYRITA HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. FITNESSBYRITA SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY
OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR
INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR
RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF FITNESSBYRITA
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FITNESSBYRITA SHALL NOT BE
LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FITNESSBYRITA’S
REASONABLE CONTROL.
2. FITNESSBYRITA’S SERVICES MAY BE USED BY YOU TO PLAN AND
CONDUCT A WORKOUT, BUT YOU AGREE THAT FITNESSBYRITA HAS NO RESPONSIBILITY OR
LIABILITY TO YOU RELATED TO ANY EXERCISE, WORKING OUT, GOODS OR SERVICES
PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN
THESE TERMS.
3. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 5 DO NOT
PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE
EXCLUDED UNDER APPLICABLE LAW.
4. You acknowledge that the Services have not been developed
to meet your individual requirements, and that it is therefore your
responsibility to ensure that the facilities and functions of the Applications
meet your requirements.
5. The physical activities to which the Services relate
carry certain inherent risks including personal injury and property damage. You
acknowledge that you undertake such activities entirely at your own risk.
6. Where you have been supplied the Services for domestic
and private use only you agree not to use the Applications and Services for any
commercial, business or resale purposes which are not first authorized by FitnessbyRita.
7. You agree that FitnessbyRita, its owners, operators, officers,
employees and agents have no liability to you for any loss of employment,
wages, salary, profit, loss of business, business interruption, or loss of
business opportunity.
8. You acknowledge that the Applications and Services do not
provide medical advice, fitness advice or other advice.
9. You are solely responsible for maintaining the
confidentiality of the device through which you access the Services and for
restricting access to your password and to your computer while logged into the
Services. You accept responsibility for all activities that occur under your
account or device.
10. Our maximum aggregate liability under or in connection
with these Terms (including your use of any Application or Services) whether in
contract, tort (including negligence) any cause of action or otherwise, or
under any theory of damages, shall in all circumstances be limited to the
amount you paid for the Services in the last twelve (12) months.
III. NO MEDICAL ADVICE.
FITNESSBYRITA SERVICES DO NOT CONTAIN OR CONSTITUTE, AND
SHOULD NOT BE INTERPRETED AS MEDICAL ADVICE OR OPINION. We are not licensed
medical professionals, and we are not in the business of providing medical
advice. You should always consult a qualified and licensed medical professional
prior to beginning or modifying any diet or exercise program. YOUR USE OF THE
SERVICES DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND FITNESSBYRITA.
IV. INDEMNITY.
You agree to indemnify and hold FitnessbyRita and its
officers, directors, employees, and agents harmless from any and all claims,
demands, losses, liabilities, and expenses (including attorneys’ fees), arising
out of or in connection with: (i) your use of the Services or services or goods
obtained through your use of the Services; (ii) your breach or violation of any
of these Terms; (iii) FitnessbyRita’s use of your User Content; or (iv) your
violation of the rights of any third party, including Third Party Providers.
6. DISPUTE RESOLUTION
I. ARBITRATION.
You agree that any dispute, claim or controversy arising out
of or relating to these Terms or the breach, termination, enforcement,
interpretation or validity thereof or the use of the Services (collectively,
“Disputes”) will be settled by binding arbitration between you and FitnessbyRita,
except that each party retains the right to bring an individual action in small
claims court and the right to seek injunctive or other equitable relief in a
court of competent jurisdiction to prevent the actual or threatened
infringement, misappropriation or violation of a party’s copyrights,
trademarks, trade secrets, patents or other intellectual property rights. You
acknowledge and agree that you and FitnessbyRita are each waiving the right to
a trial by jury or to participate as a plaintiff or class in any purported
class action or representative proceeding. Further, unless both you and FitnessbyRita
otherwise agree in writing, the arbitrator may not consolidate more than one
person’s claims, and may not otherwise preside over any form of any class or
representative proceeding. If this specific paragraph is held unenforceable,
then the entirety of this “Dispute Resolution” section will be deemed
void. Except as provided in the preceding sentence, this “Dispute
Resolution” section will survive any termination of these Terms.
II. ARBITRATION RULES AND GOVERNING LAW.
The arbitration will be administered by the American
Arbitration Association (“AAA”) in accordance with the Commercial
Arbitration Rules and the Supplementary Procedures for Consumer Related
Disputes (the “AAA Rules”) then in effect, except as modified by this
“Dispute Resolution” section. (The AAA Rules are available at
www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal
Arbitration Act will govern the interpretation and enforcement of this Section.
III. ARBITRATION PROCESS.
A party who desires to initiate arbitration must provide the
other party with a written Demand for Arbitration as specified in the AAA
Rules. (The AAA provides a form Demand for Arbitration at
www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California
residents at www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be
either a retired judge or an attorney licensed to practice law in the state of
California and will be selected by the parties from the AAA’s roster of
consumer dispute arbitrators. If the parties are unable to agree upon an
arbitrator within seven (7) days of delivery of the Demand for Arbitration,
then the AAA will appoint the arbitrator in accordance with the AAA Rules.
IV. ARBITRATION LOCATION AND PROCEDURE.
Unless you and FitnessbyRita otherwise agree, the
arbitration will be conducted in Austin, Texas (unless the arbitrator selects
another one if Austin, Texas is unreasonably burdensome to either party). If
your claim does not exceed $10,000, then the arbitration will be conducted
solely on the basis of documents you and FitnessbyRita submit to the
arbitrator, unless you request a hearing or the arbitrator determines that a
hearing is necessary. If your claim exceeds $10,000, your right to a hearing
will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator
will have the discretion to direct a reasonable exchange of information by the
parties, consistent with the expedited nature of the arbitration.
V. ARBITRATOR’S DECISION.
The arbitrator will render an award within the time frame
specified in the AAA Rules. The arbitrator’s decision will include the
essential findings and conclusions upon which the arbitrator based the award.
Judgment on the arbitration award may be entered in any court having
jurisdiction thereof. The arbitrator’s award damages must be consistent with
the terms of the “Limitation of Liability” section above as to the
types and the amounts of damages for which a party may be held liable. The
arbitrator may award declaratory or injunctive relief only in favor of the
claimant and only to the extent necessary to provide relief warranted by the
claimant’s individual claim. If you prevail in arbitration you will be entitled
to an award of attorneys’ fees and expenses, to the extent provided under
applicable law. FitnessbyRita will not seek, and hereby waives all rights FitnessbyRita
may have under applicable law to recover, attorneys’ fees and expenses if FitnessbyRita
prevail in arbitration.
VI. FEES.
Your responsibility to pay any AAA filing, administrative
and arbitrator fees will be solely as set forth in the AAA Rules.
VII CHANGES.
Notwithstanding the provisions of the modification-related
provisions above, if FitnessbyRita changes this “Dispute Resolution”
section after the date you first accepted these Terms (or accepted any
subsequent changes to these Terms), you may reject any such change by providing
FitnessbyRita written notice of such rejection by email to: info@FitnessbyRita.com,
within 30 days of the date such change became effective, as indicated in the
“Last update” date above. In order to be effective, the notice must
include your full name and clearly indicate your intent to reject changes to
this “Dispute Resolution” section. By rejecting changes, you are
agreeing that you will arbitrate any Dispute between you and FitnessbyRita in
accordance with the provisions of this “Dispute Resolution” section
as of the date you first accepted these Terms (or accepted any subsequent
changes to these Terms).
7. OTHER PROVISIONS
I. CHOICE OF LAW.
These Terms are governed by and construed in accordance with
the laws of the State of Texas, U.S.A., without giving effect to any conflict
of law principles.
II. NOTICE.
FitnessbyRita may give notice by means of a general notice
on the Services, electronic mail to your email address in your Account, or by
written communication sent by first class mail or pre-paid post to your
address. Such notice shall be deemed to have been given upon the expiration of
48 hours after mailing or posting (if sent by first class mail or pre-paid
post) or 12 hours after sending (if sent by email). You may give notice to FitnessbyRita,
with such notice deemed given when received by FitnessbyRita at any time, by
email to: info@FitnessbyRita.com.
III. GENERAL.
You may not assign these Terms without FitnessbyRita’s prior
written approval. FitnessbyRita may assign these Terms without your consent to:
(i) a subsidiary or affiliate; (ii) an acquirer of FitnessbyRita’s equity,
business or assets; or (iii) a successor by merger. Any purported assignment in
violation of this section shall be void. No joint venture, partnership,
employment, or agency relationship exists between you, FitnessbyRita or any
Third Party Provider as a result of this Agreement or use of the Services. If
any provision of these Terms is held to be invalid or unenforceable, such
provision shall be struck and the remaining provisions shall be enforced to the
fullest extent under law. FitnessbyRita’s failure to enforce any right or
provision in these Terms shall not constitute a waiver of such right or
provision unless acknowledged and agreed to by FitnessbyRita in writing.