These terms and conditions of use (the “Terms”) apply to your access to and use of any materials, content or services provided through the “FITREP” mobile application (sometimes referred to as the “FITREP App”), and any related websites, applications and services as may be made available from time to time (collectively, the “Services”), owned, operated and provided by Fitness Republic Inc. (“Fitness Republic”, “we”, “us”, “our”). By accessing and using the Services, you accept and agree to be bound by these Terms, and all applicable laws and regulations.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS, INCLUDING, BUT NOT LIMITED TO, VARIOUS LIMITATIONS, EXCLUSIONS AND INDEMNITIES.
Your use of the Services is subject to these Terms. If you are not willing to be bound by each and every term and condition, or if any representation made by you herein is not true, you may not use, and must immediately cease accessing the Services.
1. Updates to Terms
We reserve the right to amend these Terms at any time without notice to you, but we will use reasonable efforts to publish each amendment before it becomes effective. We will ensure that the latest, fully-amended version of these Terms are published through the Services. You are responsible for regularly reviewing these Terms to obtain timely notice of such amendments. If any amendment is unacceptable to you, you may terminate your agreement to these Terms by ceasing to use the Services as set out above. If you continue to use the Services after the effective date of each amendment, you will be conclusively deemed to have accepted such amended version of these Services.
2. Errors and Omissions
Without limiting the remainder of these terms, the Services and all Content (as defined below) is provided on an “as-is”, “as-available” basis, and we do not guarantee, represent or warrant that it will be error free or that the Content will be free of errors or omissions. Before using the Services or any Content obtained from it, you are encouraged to verify any information with the appropriate establishment.
3. Age Notice
The Services are intended solely for users who are 18 years old or over. The Services should not be downloaded, accessed, or used by you if you are under 18 years old. Any use by any person under the age of 18 is expressly unauthorized, unlicensed, and in violation of these Terms. We may delete any content or information that you have posted on or through the Services, terminate your Account (if and as account functionality becomes available), and/or prohibit you from using or accessing the Services (or any portion, aspect or feature of the Services) for any reason or no reason, at any time in our sole discretion, with or without notice, including without limitation if we have any reason to believe that you do not meet the eligibility criteria set out above.
4. The Services
The Services provide information about fitness and the coordination of fitness delivery bookings from third party providers under agreement with Fitness Republic (the “Third Party Providers”), and enable users to book (the “Booking”) and pay for fitness delivery services provided by Third Party Providers (“Third Party Provider Services”). In the event that you are a Third Party Service Provider, you are also bound by these Terms, unless they contradict your separate written agreement with Fitness Republic (in which case the terms of that other agreement shall prevail).
Unless otherwise agreed by Fitness Republic in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use. You acknowledge that your ability to obtain, provide or book Third Party Provider Services through the use of the Services does not establish Fitness Republic as a provider of fitness delivery services. The FITREP app (which forms a part of the Services, keep tracks of all Bookings made by you using that app. You are solely responsible for ensuring that you, and any people that you invite to train with you, or to whom you provide fitness services, are sufficiently fit and healthy to take advantage of the Third Party Provider Services and you should obtain the advice of a health physician prior to undertaking any rigorous or strenuous physical activity. You acknowledge that the Services have not been developed to meet your individual requirements.
Additionally, Fitness Republic does not endorse, and in no event shall Fitness Republic be responsible or liable, for any Third Party Provider Services. You agree that each Booking is an agreement between you and the Third Party Provider. Fitness Republic is not a party to such agreement and provides no guarantee in relation to the Third Party Provider’s performance of any Booking or Third Party Provider Services. Accordingly, you acknowledge that the Third Party Provider is responsible for:
- the performance and quality of the Third Party Provider Services (including any equipment or advice provided by the Third Party Provider);
- obtaining all licences, consents, qualifications and insurances that they are required to have under applicable laws, regulations and professional rules or that they are stated on the Services as having; and
- complying with all applicable laws, regulations and professional rules in connection with the Third Party Provider Services.
5. License to Use
Subject to these Terms, we grant you permission to download or otherwise access the Services as a personal, non-exclusive, non-transferable, revocable, limited license to use the Services, provided that with respect to any materials obtained from the Services, you may not:
- modify, copy, reproduce or create derivative works of such materials, except as explicitly provided;
- use the materials for any commercial purpose;
- distribute or transmit the materials;
- publicly display, publish or perform the materials (for any purpose, commercial or non-commercial);
- create derivative works from, transfer, or sell any materials;
- attempt to decompile or reverse engineer any software or database contained in or access through the Services; or
- remove any copyright or other proprietary notations;
without our prior, written consent. All rights not expressly granted to you are reserved by us and, if applicable, our licensors. For greater clarity, you are permitted to provide links to the Services, or for the download of the application, through email, social media, or other similar methods, provided that such methods do not involve framing or embedding of any portion of the Services within another website, application or service, imply any affiliation between you and us, or you and the Services, or portray us or the Services in a false, misleading, derogatory or otherwise defamatory manner.
6. Bookings & Payment of Services
You understand that use of the Services may result in charges to you for the Third Party Provider Service you receive (the “Charges”). Fitness Republic will receive and/or enable your payment of the applicable Charges for Third Party Provider Services obtained through your use of the Services. Charges will be inclusive of applicable taxes, depending on jurisdiction.
In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and Fitness Republic may collect payment of those charges from you, on the Third Party Provider’s behalf as their limited payment collection agent, and payment of the Charges shall be considered the same as payment made directly by you to the Third Party Provider. Fitness Republic will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service. This payment structure is intended to fully compensate a Third Party Provider, if applicable, for the Third Party Provider Services obtained in connection with your use of the Services. In all other cases, Charges you incur will be owed and paid directly to Fitness Republic or its affiliates, where Fitness Republic is solely liable for any obligations to Third Party Providers.
Fitness Republic accepts payment of Charges using VISA or Mastercard. You confirm that any VISA and/or Mastercard you use to make a Booking is yours or that you have authorisation from the owner of the card or payment account to make such payment. All credit/debit card holders are subject to validation checks and authorisation by the card issuer. You agree that payment pre-authorisation checks may be carried out on our behalf in respect of an amount equal to the Charge when you make a Booking. We are not responsible for your card issuer, bank or payment service provider charging you as a result of our processing of payments from you in accordance with these Terms. If the issuer of the card or provider of the payment service which you are using refuses to authorise payment, we will not accept your Booking (or if already accepted, we will give you notice that your Booking is cancelled) and we will not be responsible for any delay or non-performance by the Third Party Provider.
You may elect to cancel your request for Third Party Provider Services at any time prior to confirming a Booking with a Third Party Provider. If you confirm a Booking and change your mind, you may cancel your Booking without making payment of the Service Fee provided that you cancel the Booking through the Service at least twelve (12) hours prior to the start time of your Booking. If a Booking is cancelled within 12 hours of the start time of your Booking, or where relevant, we will charge you 100% of the Service Fee (such amount being inclusive of all applicable taxes) (the “Cancellation Fee”). You will also be charged a Cancellation Fee if you fail to attend a Booking at the start time and/or at the correct location. The Cancellation Fee will be debited from your account. We may waive our rights to charging Cancellation Fees as stated above, in our sole discretion, where you have been unable to cancel a Booking without incurring the Cancellation Fee for genuine reasons which were outside of your control. Please contact us at firstname.lastname@example.org if this is the case.
If you attempt to attend a Booking but the Third Party Provider has entered administration, insolvency, bankruptcy (or any similar situation which affects the Third Party Provider’s ability to provide the Third Party Provider Services) or is no longer in business, or if the Third Party Provider is not available to provide the Third Party Provider Services at the Booking time, we may provide you with a refund for the Service Fee on request.
If we take legal action against you for non-payment or any other breach of these Terms and a court makes an award in our favour, you will be responsible for all costs allowable by the Courts.
In order to confirm your Booking and/or to remind you of your Booking at a later date, you may receive emails or in-App notifications from Fitness Republic. Once your Booking has been confirmed:
- we will allocate you a Third Party Service Provider and provide you with information about that Third Party Service Provider in advance of your Booking; and
- we ask you to attend the Booking at the Appointment Time. Your Booking will not be valid for any Service Provider other than the Service Provider we have allocated to you in accordance with this Clause 9, any other Service Provider Service, or any other date or time. If you want to cancel your Booking, Clause 11 applies.
Sometimes the Third Party Service Provider who has been allocated to your Booking will need to cancel. You agree that we have no responsibility for any cancellation of a Booking by a Third Party Service Provider. However, we will communicate any such cancellation to you and use reasonable endeavours to allocate you an alternative Service Provider if there is one available. We will only allocate you an alternative Provider if there is one available who meets your preferences (as provided to us at the time you made the Booking). You will then be able to confirm the Service Provider if there is one available who meets your preferences. If we cannot allocate you an alternative Service Provider, we will not charge you for the Booking. If you do not wish to proceed with a Booking where we have allocated an alternative Service Provider, you may cancel the Booking in accordance with this Article.
While we make an effort to ensure that information displayed on the FITREP App about Third Party Service Providers is accurate, this information is provided by the relevant Third Party Service Provider and is and remains their responsibility. Fitness Republic does not take responsibility for this material or its accuracy.
Fitness Republic may also (but is not obliged to) carry out background checks in respect of Service Providers and/or take steps to verify that Service Providers have the licences, consents, qualifications and insurances that they are required to have under applicable laws, regulations and professional rules or that they are stated on the App as having.
7. Ratings of Third Party Service Providers
8. Competitions and Promotional Offers
From time to time we may offer you the chance to enter competitions or take up certain promotional offers. We will alert you to any additional terms which apply to such competitions or promotions at the relevant time.
10. Your Account
In connection with your Account, you are solely responsible for (i) your Account and the maintenance, confidentiality and security of your Account and all passwords related to your Account; and (ii) any and all activities that occur under your Account, including all activities of any persons who gain access to your account, with or without your permission.
You must not register for an Account on behalf of any individual other than yourself, or register for an Account on behalf of any group or non-individual entity unless you are duly authorized to do so by such group or entity.
You agree to immediately notify us of (i) any unauthorized use of your Account, any service provided through your Account or any password related to your Account, or (ii) any other breach of security with respect to your Account or any service provided through it, and (iii) you agree to provide assistance to us, as requested, to stop or remedy any breach of security related to your Account.
You agree to provide true, current, accurate and complete customer information as requested by us or our agents from time to time and you agree to promptly notify us of any changes to this information as required to keep such information held by us current, complete and accurate.
We may assign you, or you may create, a password and account identification to enable you to access and use certain portions of the Services. Each time you use a password or identification, you will be deemed to be authorized to access and use the Services in a manner consistent with these Terms and we have no obligation to investigate the authorization or source of any such access or use of the Services.
11. Proprietary Rights
In these Terms, “Content” means all materials and content, including designs, editorial, text, graphics, audiovisual materials, multimedia elements, photographs, videos, music, sound recordings, reports, documents, software, information, formulae, patterns, data and any other work.
Our Content – Except where expressly stated otherwise, all right, title and interest in and to the Services and all Content, source code, processes, designs, technologies, URLs, domain names, marks and logos forming any part of the Services (collectively, “Our Content”) is fully vested in us, our licensors or our suppliers and are protected by applicable copyrights, trade-marks, or other proprietary rights and laws. You agree that Our Content is licensed subject to these Terms, including the disclaimers and limitations of liability herein. Nothing in your use of the Services or these Terms grants you any right, title or interest in or to Our Content except the limited right to use the Services as set out herein.
Your Content – The Services may from time to time contain message board, chat, forum, social media, comments or other communication services. We do not claim ownership of any content that you post, upload, input, provide, submit or otherwise transfer to us, or any third party, using the Services (collectively, “Your Content”); however, you agree that by posting, uploading, inputting, providing, submitting, entering or otherwise transmitting Your Content to us or any third party using the Services, whether or not through use or, or associated with, your Account:
- you will be deemed to have thereby granted us a royalty-free, non-exclusive, worldwide, fully paid-up, sublicensable, irrevocable license to use, copy, distribute, transmit, display, edit, delete, publish and translate Your Content to the extent reasonably required by us to provide and promote the Services as it may exist from time to time, in any medium whatsoever, or to ensure adherence to, or enforce, these Terms;
- you will be deemed to have thereby confirmed, represented and warranted to us that you have all right, title and interest, as well as the power and authority necessary, to grant such license to Your Content to us as set out above; and
- you will indemnify and save us harmless from and against any liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever incurred by us relating to or arising from Your Content, including instances where the Your Content (A) infringes any Third Party Content or other third-party intellectual property rights, or (B) is inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful.
Data Protection – We will and have established commercially reasonable security measures to ensure that our personnel only use Your Content in accordance with the license granted under these Terms.
Deletion of Your Content – You acknowledge and agree that we may retain a copy or copies of Your Content for archival or compliance purposes or to otherwise provide the Services to you or others, subject always to your license to us set out above, even if you delete your Account to which Your Content is connected. If permitted by the functionality of the Services, you may delete Your Content from the communication facilities thereupon, though we may retain a copy internally thereof for compliance purposes.
Responsibility for Content – You acknowledge and agree that you are exclusively responsible for determining the accuracy, suitability, harmfulness or legality of any content, information or material received, transmitted or sent by you using the Services.
Public Transmission and Caching – You acknowledge and agree that the technical processing and transmission of the Services, including Your Content and other Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices, and that such Content may be subject to “caching” or other technical processing or transmission policies and procedures by us or at intermediate locations on the Internet. You understand that any message or information you sending using the Services may be read or intercepted by others, even if there is a special notice that a particular transmission is encrypted.
Feedback – All right, title and interest in and to comments, ideas, suggestions and impressions of the Services and our products given by you to us (collectively, the “Feedback”) is and shall be deemed to be our property and, by submitting Feedback to us, you agree that you thereby assign to us all right, title and interest to such Feedback to us.
Compliance and Complaints – We do not have any obligation to censor or review any of Your Content, to censor or review any Third-Party Content or to monitor use of the Services. However, you agree that we may, without notice or liability, disclose to third parties any of your information or Your Content, monitor use of the Services and monitor, review and retain any Content, including Your Content, if we believe in good faith that such activity is reasonably necessary to provide the Services to customers, ensure adherence to or enforce these Terms, comply with any laws or regulations, respond to any allegation of illegal conduct or claimed violation of third party rights, or protect us or others. If we receive a complaint relating to use of the Services by you, you acknowledge and agree that we may, in our sole and absolute discretion and without notice or liability, investigate the complaint, and restrict, suspend or terminate your access to the Services, including your Account, and remove Your Content from our servers.
You are permitted to establish links to the homepage of the app related to the services, www.fitrepapp.com but you agree to remove such link if requested by Fitness Republic.
12. Proprietary Notices
Copyright Notice – The Services and all Content is owned and copyrighted by Fitness Republic and/or its licensors, and is licensed to you in accordance with these Terms.
Trademark Notice – The trademarks, logos, and service marks displayed on or through the Services are the property (whether registered or unregistered) of Fitness Republic, its licensors or other third parties. You are not permitted to use trademarks, logos and service marks for any purpose without our prior, written consent. Except as expressly indicated on the Services, no endorsement, sponsorship, affiliation or other authorization is implied by any use of third party trademarks.
13. Acceptable Use and Prohibitions
In addition to any other terms or conditions regarding your use of the Services in these Terms, we may require you to agree to specific terms for particular services, products or areas of the Services from time to time by confirming your agreement. Any such additional terms which you agree to will be deemed incorporated into these Terms.
General Proper Conduct (Things You Must Do) – Without limiting the generality of anything else contained in these Terms, you must ensure that:
- you only use the Services for lawful purposes; and
- if at any time you become aware of any violation, by any person or entity under your control, of any part of these Terms, you will immediately notify us and provide us with assistance, as requested, to stop or remedy such violation.
General Prohibited Conduct (Things You Must Not Do) – Without limiting the generality of anything else contained in these Terms, you agree that you will not, in connection with the Services, directly or indirectly do or permit any of the following:
- post, upload, reproduce, distribute or otherwise transmit any Content that
- is unauthorized or unsolicited commercial communications, junk or bulk communications or other “spam” (whether or not using e-mail services, including instant messaging, blog or comment spam) or is otherwise duplicative or unsolicited,
- contains a virus, cancelbot, Trojan horse, worm or other harmful, disruptive or surreptitious component,
- is defamatory, infringing, or unlawful,
- is inappropriate, profane, obscene, indecent materials or information without suitable or lawfully-required access controls (which controls shall in no event be our responsibility),
- gives rise to civil liability, or otherwise violates the rights or assists others to violate the rights of us or any third party, such violations including engaging in copyright infringement, invasion of privacy, trademark infringement or defamation,
- constitutes a criminal offence, or otherwise engages in or assists others to engage in any criminal offence, including pyramid selling, unauthorized use of a computer, mischief in relation to data, fraud, obscenity and child pornography; or
- incites discrimination, hate or violence towards one person or a group because of their belonging to a race, religion, nationality, sexuality, gender or other human rights-protected group of persons;
- engage in threats, harassment, intimidation, stalking or abuse or any conduct that violates the legal rights of others, including the rights of minors and rights relating to privacy and publicity;
- scan or probe another computer system, obstruct or bypass computer identification procedures or engage in unauthorized computer or network trespass without the express permission of the owners of such computer systems;
- forge headers or otherwise manipulate any protocols or identifiers used in any system or protocol in such a manner to disguise the origin of any data transmitted using the Services;
- impersonate or falsely represent your association with any person, including a representative of us;
- disrupt or threaten the integrity, operation or security of any service, computer or any Internet system;
- disable or circumvent any access control or related process or procedure established with respect to the Services;
- sublicense, share, resell, reproduce, copy, distribute, redistribute, or exploit for any commercial purposes (except for your internal, personal, non-commercial purposes), any portion of, use of or access to, any Services, except where expressly authorized by us;
- harvest, scrape, extract, gather, collect, or store personal information about others without their express consent; or
- harvest, scrape, or use any robot, spider, crawler, script or other automated means or interface not provided by us to access the Services or to extract data, collect information or otherwise interact with the Services;
- use any automated devices, bots, agents, crawl, scraping, scripts, intelligent search or any similar means of access to Content through the FitRep App;
- systematically retrieve data or other Content from the FitRep App to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual or automated methods (although operators of public search engines may use spiders to index materials from the FitRep App for the sole purpose of creating publicly available searchable indices of the materials, and Fitness Republic reserves the right to revoke these exceptions either generally or in specific cases);
- use automated methods to use the FitRep App in a manner that sends more requests to the Fitness Republic servers in a given period of time than a human can reasonably produce in the same period by using a conventional web browser;
- use the FitRep App to recruit or otherwise solicit any user to join third party services or websites that are competitive to FitRep, without Fitness Republic’s prior written approval;
- falsify or delete any author attributions, legal or other notices, or proprietary designations or labels of origin or source;
- attempt to probe, scan, or test the vulnerability of any Fitness Republic system or network or breach any security or authentication measures;
- access the FitRep App for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes, including, but not limited to, building a competitive product or service;
- take any action that imposes an unreasonable or disproportionately large burden on FITREP App’s infrastructure or that otherwise may adversely affect performance of the FITREP App or restrict any other user or Fitness Republic from using or enjoying the FITREP App;
- engage in any other action that, in the judgment of Fitness Republic, exposes it or any third party to potential liability or detriment of any type; or
- cause, advocate, encourage, or assist any third party in doing any of the foregoing.
In addition to the above general prohibitions, the following are specific prohibitions relating to the scheduling or Booking of Services through the FITREP App. You are responsible for your use of the FITREP App. You agree that the following actions, without limitation and in addition to the Terms herein, are prohibited and constitute a material breach of these Terms. This list is not meant to be exhaustive, and Fitness Republic reserves the right to determine what types of conduct it considers to be inappropriate use of theFITREP App or any part thereof. In the case of inappropriate use, Fitness Republic may take such measures as it determines in its sole discretion. By way of example, and not as limitation, you will not:
- schedule any Third Party Provider Services or otherwise make any bookings with clients through the FITREP App, for any purpose other than obtaining or offering personal training and fitness Services via the FITREP App;
- schedule or book any Services outside of the FITREP App with any trainer or Third Party Service Provider that you were first introduced to through the FITREP App;
- pay for any Third Party Provider Services, or accept payment for same, outside of theFITREP App;
- display any disrespectful or inappropriate behavior at any time during any Third Party Provider Services;
- users of the FITREP App, including Third Party Providers, may not contact their clients or Third Party Providers, as the case may be, by any means other than through the FITREP App (the only permitted exception is by way of text of telephone directly not more than 1 hour from the schedule Booking); or
- transfer or sell any Booking.
Offender and Repeat Offender Policy – We have adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat offenders of these Terms. We may also, at our sole discretion, limit access to the Services or terminate the Account of any user who offends these Terms, whether or not there is any repeat offense.
We may, in our sole discretion, suspend, restrict or terminate your use of the Services, including your Account, and Your Content, effective at any time, without notice to you, for any reason, including if the operation or efficiency of the Services or our or any third party’s equipment or network is impaired by your use of the Services, we have received a third party complaint which relates to your use or misuse of the Services, or you have been or are in breach of any term or condition of this Agreement
You acknowledge and agree that termination, curtailment, or suspension of your use of the Services for any reason may result in restrictions of, disruptions to or cessation of your or third party access to your Account and Your Content, and you hereby agree to release us from any and all liability and claims of loss resulting from restrictions, disruptions or cessations. If your use of the Services is suspended or restricted, we will have no obligation to forward any of Your Content to you or any third party.
Upon termination (i) you must immediately delete or remove the FITREP App from all Devices and immediately destroy all copies of the FITREP App then in your possession, custody or control and if requested, certify to us that you have done so; and (ii) any amounts due from you in respect of Bookings shall remain due and payable in accordance with these Terms. If we terminate this Agreement due to a breach by you, we will cancel any Bookings where the Appointment Time falls on or after the termination date. If you terminate this Agreement, you are responsible for cancelling any Bookings where the Appointment Time falls on or after the termination date. If you fail to do so, you may be required to pay Service Fees for such Bookings.
15. DISCLAIMERS, LIMITS OF LIABILITY AND INDEMNITIES
Device-Based and Internet-Based Limitations – Your use of the Services requires an iOS 8 iPhone device (the “Device”) and depends on Internet access, including networks, cabling, facilities and equipment, all of which is not in our control; accordingly (i) we cannot guarantee any minimum level regarding such performance, speed, reliability, availability, use or consistency, and (ii) data, messages, information or materials sent over the Internet may not be completely private, and your anonymity is not guaranteed. 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 when you access or use the Services from your Device. You are responsible for acquiring and updating compatible hardware necessary to access and use the Services and any updates thereto. Depending on the update, you may not be able to use the Services until you have downloaded the latest version of the App and accepted any new terms.
Customer Acknowledgement – You acknowledge and agree that (i) all use of the Services provided by us is at your own risk, (ii) the Content that you may access while using the Services may contain links to other websites, which are provided solely as a convenience to you and the inclusion of any such link does not imply endorsement, investigation or verification by us of such websites or the information contained therein, and (iii) Fitness Republic has no responsibility or liability related to Third Party Provider Services or your Booking or use thereof.
Disclaimer of Warranties – We make no conditions, warranties or representations about the suitability, reliability, usability, security, quality, capacity, performance, availability, timeliness or accuracy of the Services or Third Party Services. We expressly disclaim all conditions, warranties and representations, express, implied or statutory, including implied conditions or warranties of merchantability, fitness for a particular purpose, durability, title and non-infringement, whether arising by usage of trade, by course of dealing, by course of performance, at law, in equity, by statute or otherwise howsoever.
No Liability – Notwithstanding any other provision of these Terms, in no event will we, our affiliates, or our controlling parties, agents, shareholders, directors, representatives, employees, suppliers, licensors, resellers or distributors (collectively in these disclaimers and limitations, “we” or “us”) be liable for any direct, indirect, special, incidental, consequential or punitive damages, or any other damages or losses whatsoever, including damages for loss of profits, goodwill, opportunity, earnings, use or data, arising directly or indirectly from or related to these Terms or the Services, Third Party Provider Services or any Content or software in connection therewith, regardless of the cause of action and even if one or more of us have been advised of the possibility of such damages or losses, or if such damages or losses would be reasonably foreseeable, including damages or losses arising from or in any way related to the following:
- sending, receiving, not sending, not receiving, loss, deletion or alteration of any transmissions, data or transactions entered into through or using the Services;
- any transaction or relationship between you and any Third Party Provider (and where you are a Third Party Service Provider, between you and the client you arrange a Booking with), even if Fitness Republic has been advised of the possibility of such damages;
- any suspension, curtailment, restriction, termination or other limitation placed on your use of the Services, or your Account;
- any act or omission of you or any third party, including any threatening, defamatory, obscene, offensive or illegal conduct or any infringement of another’s rights, including intellectual property rights;
- any loss or damage to Your Content or other data arising directly or indirectly from your use or non-use of the Services or related components;
- the performance of the Internet or the Services;
- the content or accuracy of any material, information or data (including any software) related to these Terms or viewed, downloaded, accessed or transmitted using, over or through the Internet or the Services, including material that infringes the rights of others or otherwise violates laws or regulations; and
- delays, errors, interruptions, mistakes, omissions, non-delivery, incorrect delivery, viruses, Trojan horses, spyware, spam or defects in the transmission of any information, material or data over or through our systems or networks or the systems or networks of third parties.
If we breach these Terms we shall only be liable for losses which are a reasonably foreseeable consequence of such breach, up to a maximum of the greater of (i) the amount paid by you to us for Bookings you have made in the twelve (12) months prior to any such loss being incurred by you, and (ii) five hundred CAD$ ($500). Losses are foreseeable where they could be contemplated by you and us at the time of entering into these Terms.
Applicability – Some jurisdictions may prohibit the disclaimer of certain warranties or conditions or the limitation of certain types of liability. In such circumstances, to the extent that such prohibitions prohibit any exclusions and limitations in these Terms, such exclusions and limitations will not apply to you strictly to the extent necessary to make these Terms consistent with such prohibitions.
Indemnity By You – You agree to indemnify and hold Fitness Republic and its affiliates and each of their officers, directors, shareholders, representatives, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including lawyer fees), arising out of or in connection with (i) your use of the Services, the provision of third Party Provider Services or services or goods obtained through your use of the Services, (ii) your breach or violation of any of these Terms, (iii) Fitness Republic’s use of Your Content, and (iv) your violation of the rights of any third party, including Third Party Providers.
16. General Provisions
Interpretation – In these Terms, (i) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (ii) the word “including”, the word “includes” and the phrase “such as”, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, (iii) all references to website addresses or URLs shall also include any successor or replacement websites containing substantially similar information as the referenced website(s), and (iv) any monetary amounts expressed are in Canadian dollars.
Waiver of Rights and Remedies – Our failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. Neither the course of conduct between you and us nor trade practice shall act to modify any provision of these Terms. Our rights, powers and remedies in these Terms, including without limitation the right to suspend, restrict or terminate your access to any portion of the Services, are cumulative and in addition to and not in substitution for any right, power or remedy that may be available to us at law or in equity.
Severability – If any provision of these Terms is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability will attach only to such provision or part thereof and the remaining part of such provision and all other provisions hereof will continue in full force and effect.
Governing Law and Jurisdiction – These Terms and the rights of the parties hereto are governed by, and will at all times be construed in accordance with, the laws in force in the Province of Ontario and the laws of Canada applicable therein, without reference to its conflict of laws principles. You hereby irrevocably consent to the jurisdiction of the courts of the Province of Ontario in connection with any matter arising out of or in connection with these Terms.
Assignment and Inurement – We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
Survival – All provisions that, by their meaning or nature, are intended to survive termination or expiry of these Terms shall survive termination or expiration of these Terms.
Relationship – You agree that no joint venture, partnership, employment or agency relationship exists between us and you as a result of these Terms or your use of the Services.
Entire Agreement – These Terms, as amended from time to time, including any and all documents, websites, rules, terms and policies referenced herein, constitutes the entire agreement between us and you with respect to the matters referred to in these Terms and supersedes all prior and contemporaneous agreements and understandings, whether electronic, oral or written, between us and you with respect to such matters.
English Language – The parties acknowledge that agreement and all documents relating thereto be drawn up in English / Les parties reconaitre que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.
Questions and Concerns:
If you have any questions or concerns about these Services terms you may contact Fitness Republic.