Terms and Conditions
These Terms and Conditions
of Use (the Terms of Use) and the Privacy Policy (Privacy Policy) set out the
terms and conditions governing access to and use of the Fulcrum Strength &
Sports Performance website located at www.fulcrumsp.com, the Fulcrum Strength
& Sports Performance mobile application (Application), and the Fulcrum
Strength & Sports Performance Services). These Terms of Use are entered
into between you (referred to as you, your, or as a user) and Fulcrum Strength
& Sports Performance a Limited Liability Company (Fulcrum Strength &
Sports Performance, us, we, or our). The Services are the property of Fulcrum
Strength & Sports Performance, LLC, Please read these Terms of Use
carefully.
BY ACCESSING OR USING ANY OR
ALL OF THE SERVICES, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, THESE
TERMS OF USE AND THE PRIVACY POLICY, WHICH FORM A LEGALLY BINDING AGREEMENT.
PLEASE NOTE THESE TERMS CONTAIN A RELEASE, DISCLAIMERS, AND LIMITATIONS OF
LIABILITY, AS WELL AS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER FOR
U.S. RESIDENTS. IF YOU PURCHASE A GYM MEMBER APP SUBSCRIPTION, THESE TERMS
CONTAIN IMPORTANT INFORMATION ABOUT AUTOMATIC RENEWALS AND CANCELLATION OF YOUR
SUBSCRIPTION. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, PLEASE DO NOT USE
THE SERVICES.
To register with and use the
Services, you must be 12 years or older and/or be of legal age in your
jurisdiction of residence, or be between the age of 13 and 17 and obtain the
express permission of your parent or legal guardian.
CHANGES TO THESE TERMS OF
USE
We reserve the right to
modify or amend these Terms of Use without notice at any time. The latest Terms
of Use will be accessible through the Application, and you should always review
these Terms of Use prior to using the Services to ensure that you have a
current understanding of the Terms of Use under which you are permitted to
access the Services. If we make material modifications or amendments to these
Terms of Use, we will notify you by reasonable means which could include
notification through the Services or by direct communication to you via email
or your account. Use by you of the Services following any modifications or
amendments to these Terms of Use shall signify your acceptance of such
modifications or amendments.
By agreeing to these Terms
of Use, you agree to the terms of our Privacy Policy, which is incorporated
herein by reference. Before using the Services, please read through the Terms
of Use and Privacy Policy carefully. All personal information provided to us as
a result of your use of the Services will be handled in accordance with our
Privacy Policy.
1.
ACCOUNT REGISTRATION
You may be required to
create an account in order to use all or part of the Services. If you register
an account, you agree: (a) to provide accurate, complete, and current
information as prompted by the registration forms; (b) to keep such information
up-to-date in your account page, including any credit card numbers and
expiration dates; (c) to keep your account information, including your
password, secure and confidential; (d) to notify Fulcrum Strength & Sports
Performance immediately at train@fulcrumsp.com if you learn of any unauthorized
access or use of your account or password or any other known or suspected
breach of security related to your account; (e) you will be responsible for all
activity that occurs under your account, including from unauthorized access;
(f) you may not share your account, username, or password with a third party or
use the account, username, or password of another account holder; (g) when
logging on to the Services, to only use the Services as permitted under these
Terms of Use.
Unless otherwise indicated,
the content of the Services, including, but not limited to, all information,
the design, text, images, graphics, audio clips, video clips, metadata, data,
selection and arrangement of elements, organization, and the design, compilation,
and other matters related to the Services (collectively, "Content")
and the source and object code, format, algorithm, and structure of the
Application are protected under applicable intellectual property and other
laws, including, without limitation, those of the United States. All Content and intellectual property rights
herein are the property of Fulcrum Strength & Sports Performance or used
with the permission of the rights owner and are protected pursuant to
applicable intellectual property laws. The posting of any Content on the
Services does not constitute a waiver of any right in such Content. The
reproduction, duplication, distribution (including by way of email or other
electronic means), publication (including posting on another website)
modification, copying or transmission of Content from the Application or the
Site in any form or by any means is strictly prohibited without the express
prior written consent of Fulcrum Strength & Sports Performance. Requests
for permission to reproduce or distribute materials found on the Application or
the Site can be made by contacting Fulcrum Strength & Sports Performance by
email at train@fulcrumsp.com. The Content may only be used for personal,
non-commercial purposes.
3. Fulcrum Strength &
Sports Performance MARKS
The Fulcrum Strength &
Sports Performance logo and all page headers, custom graphics, button icons,
trademarks, service marks and logos appearing in the Application or the Site,
unless otherwise noted, are service marks, trademarks (whether registered or
not) and/or trade dress of Fulcrum Strength & Sports Performance (the
"Marks"). You are not authorized to display or use the Marks in any
manner without the express prior written consent of Fulcrum Strength &
Sports Performance. The use or misuse of the Marks or other trademarks, names,
logos, service marks and/or trade dress or any other materials contained
herein, except as permitted herein, is expressly prohibited. All other product
and company names and trademarks mentioned, displayed, cited or otherwise
indicated on the Site or in the Application are the property of their LICENSE
GRANT.
Subject to your compliance
with the requirements and restrictions of these Terms of Use, and STRICTLY FOR
YOUR PERSONAL, NON-COMMERCIAL USE, we grant you a limited, revocable,
non-exclusive, non-sublicensable, non-transferrable, non-assignable, license to
(a) access and use the Services and to view the Content, and (b) to download
and install the Application on a device you own or are authorized to use. You
acknowledge and agree that the Application is provided under license, and not
sold, to you. You do not acquire any ownership interest in the Application
under these Terms of Use, or any other rights thereto other than to use the
Application in accordance with the license granted, and subject to all terms,
conditions, and restrictions under these Terms of Use.
You shall not: Reproduce,
download, archive, redistribute, broadcast, sell, resell, license, modify,
create derivate works of, exploit, or make any commercial use of any of the
Services or Content, except if you have executed a written agreement with an authorized
representative of Fulcrum Strength & Sports Performance allowing you to do
so;
Remove or alter any
copyright, trademark, or other intellectual property notices contained in the
Content or Services;
Reverse engineer,
disassemble, decompile, or otherwise attempt to gain access to the source code
of the Application or any portion of the Site;
Remove, disable, circumvent,
or disrupt any copy protection, rights management, or security features of the
Services, or scan, probe, or test the vulnerability of any Fulcrum Strength
& Sports Performance system or network or the systems and networks
connected to the Services;
Use any software robots,
spiders, web crawler, bots, or other similar means whether automated or manual
to access, acquire, index, or aggregate information from the Services;
Upload to the Services any
virus, malware, trojan horse, or any other malicious software;
Attempt to gain unauthorized
access to, interfere with, damage, disrupt, or otherwise create an undue burden
on the server on which the Site is hosted or any server, computer, or database
connected to the Services;
Share your account,
password, or other login information with another person or use another persons
account, password or other login information to access the Services;
Bypass any geographic
restrictions that may be placed on the Services, including any IP address-based
restrictions;
Use the Services or download
the Application from any country that is subject to a U.S. government embargo,
or that the U.S. Government has designated a terrorist supporting country; Use
the Services for any purpose that is prohibited by these Terms of Use;
Violate any applicable law,
statute, ordinance, or regulation governing your use of the Services.
You acknowledge and agree
that we may immediately and without notice suspend or terminate your account if
you engage in conduct that violates these usage restrictions or any other term
of these Terms of Use. If we terminate your account because of your violation
of these usage restrictions or your violation of any other term of these Terms
of Use, you may not re-register for or otherwise use the Services under any
other username.
5.USER SUBMISSIONS; RIGHTS
YOU GRANT Fulcrum Strength & Sports Performance
User submissions. You may
choose to submit information to us through the Services for various reasons,
such as to become a Fulcrum Strength & Sports Performance member, make a
purchase, or apply for Fulcrum Strength & Sports Performance employment
opportunities. By submitting information to Fulcrum Strength & Sports
Performance, you authorize us to utilize this information for the purpose for
which it was submitted and for such other purposes as set out in our Privacy
Policy. Nothing in these Terms of Use or the Site shall constitute an offer or
promise of employment. We may or may not review all or any information
submitted to us.
Rights you grant us. Except
for (i) personally identifiable information such as names, addresses, and
financial information and (ii) information you submit in relation to an
employment, by submitting unsolicited information and content through the
Services, you grant Fulcrum Strength & Sports Performance and each of its
respective licensees, successors, and assigns a non-exclusive, worldwide,
perpetual, fully-paid and royalty free license (with the right to sublicense)
to store, use, copy, reproduce, modify, publicly perform, display, distribute,
adapt, and create derivate works of, and to promote, market, and exploit such
submission. By sending any unsolicited submission to us, you waive the right to
make any claim against Fulcrum Strength & Sports Performance, its parents
or affiliates related to use of the submission, including any claim of moral
rights or attribution.
User submission
restrictions. By uploading or submitting any content you represent and warrant
that you own or have the necessary rights or licenses to submit such content.
You also represent and warrant that any uploaded material does not:
infringe any copyright or
other intellectual property or other rights of any other person or entity;
contain any material that is
defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful,
inflammatory, or otherwise objectionable; promote sexually explicit or
pornographic material, violence, or discrimination based on race, sex, religion,
nationality, disability, sexual orientation, or age;
violate the legal rights
(including the rights of publicity and privacy) of others or contain any
material that could give rise to any civil or criminal liability under
applicable laws or regulations or that otherwise may be in conflict with these
Terms of Use or our Privacy Policy;
promote any illegal
activity, or advocate, promote, or assist any unlawful act;
involve commercial
activities or sales, such as contests, sweepstakes and other sales promotions,
barter, or advertising;
give the impression that the
content emanates from or is endorsed by Fulcrum Strength & Sports
Performance or any other person or entity, if this is not the case.
Our right to take corrective
action. We, in our sole discretion, reserve the right to monitor, remove, or
edit any user content for any or no reason at any time. We may disclose your
identity or other information about you to any third party who claims that user
content submitted by you violates their legal rights, including intellectual
property or privacy rights. We may take appropriate legal action, including
referral to law enforcement authorities, for any illegal or unauthorized use of
the Services. We have the right to cooperate with any law enforcement
authorities or court orders requesting or directing us to disclose the identity
or any other information of anyone posting materials on or through the
Services. YOU WAIVE AND HOLD HARMLESS Fulcrum Strength & Sports Performance
FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Fulcrum Strength &
Sports Performance IN RESPONSE TO AN INVESTIGATION BY LAW ENFORCEMENT
AUTHORITIES OR AS A CONSEQUENCE OF Fulcrum Strength & Sports PerformanceS ACTIVITIES
INTENDED TO COMPLY WITH LAW OR REGULATIONS.
6.
THIRD PARTY CONTENT
You understand that when
using the Services, you may be exposed to third party content. We are not
responsible for the accuracy, usefulness, or intellectual property rights
relating to third party content. Accordingly, you waive any and all claims,
rights, or remedies against Fulcrum Strength & Sports Performance with
respect to such third party content, except as provided herein for copyright
infringement notices. We do not proactively screen, monitor, or control user
uploaded content and thus do not endorse any content or opinion expressed in
any such content. We expressly disclaim
any and all liability in connection with any such third party content. As set forth in other provisions of these
Terms of Use, we may investigate any reported user content in violation of
these Terms of Use or any laws or regulations, and may determine in our sole
discretion whether to remove such content.
7. ADDITIONAL TERMS,
CONDITIONS, AND AGREEMENTS
We may require you to comply
with additional rules, guidelines or other terms and conditions in order to use
various features of our Services, to participate in certain promotions or
activities available through our Services, or for other reasons. In such cases,
you may be asked to expressly consent to these additional terms and conditions,
for example, by checking a box or clicking on a button marked "I
agree." This type of agreement is known as a "click-through"
agreement. For example, you will be required to enter into a separate agreement
if you use this Site (or any other site associated with Fulcrum Strength &
Sports Performance) or the Application to join one of our clubs, enter a
sweepstakes, or make a purchase. If any of the terms or conditions of a
click-through agreement are different than the terms of these Terms of Use,
then the terms of the click-through agreement will supplement or amend these
Terms of Use, but only with respect to the matters governed by such
click-through agreement. In addition, certain areas of our Site (such as our
online store) may be operated by third party service providers. Such areas may
be governed by certain additional terms, conditions, or policies of those third
party providers.
8.
APPLE APP STORE TERMS
If you download the
Application from the Apple, Inc. (Apple) App Store or use the Application on a
iOS device, you acknowledge that you have read and agree to the following
additional terms: (a) these Terms of Use are between Fulcrum Strength &
Sports Performance and you only, not Apple, and Fulcrum Strength & Sports
Performance is solely responsible for the Application and its content; (b)
Apple has no obligation whatsoever to furnish any maintenance and support
services with respect to the Application; (c) if you have paid any fee for the
Application, in the event of any failure of the Application to conform to any
applicable warranty, you may notify Apple, and Apple will refund any applicable
fee for the Application to you; to the maximum extent permitted by applicable
law, Apple will have no other warranty obligation whatsoever with respect to
the Application; (d) Fulcrum Strength & Sports Performance, not Apple, is
responsible for addressing any claims of you or any third party relating to the
Application or your possession and/or use of the Application, including but not
limited to: product liability claims, any claim that the Application fails to
conform to any applicable legal or regulatory requirement, and claims arising
under consumer protection, privacy, or similar legislation; (e) in the event of
any third party claim that the Application or your possession and use of the
Application infringes that third party’s intellectual property rights, Fulcrum
Strength & Sports Performance, not Apple will be solely responsible for the
investigation, defense, settlement, and discharge of any such intellectual
property infringement claim; (f) you represent and warrant that: you are not
located in a country that is subject to a U.S. Government embargo, or that is
on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal
Regulations, and that you are not listed on any U.S. Government list of prohibited
or restricted parties; (g) Apple and Apples subsidiaries are third party
beneficiaries of these Terms of Use, and upon your acceptance of these Terms of
Use, Apple will have the right (and will be deemed to have accepted the right)
to enforce these Terms of Use against you as a third party beneficiary thereof.
9.
MOBILE NETWORKS; TEXTS
If you access the Services
through a mobile network, or signup to receive text messages, your mobile
network providers messaging, data, and other rates and fees may apply. We shall
have no responsibility or liability for any data fees you incur through your
use of the Services. Some features of the Services may be restricted by or may
be incompatible with your mobile network or device.
With our prior written
consent, you may create hyperlinks directly to the home page of the Site, or
the home page of any of our clubs within the Site, provided that: (i) the
hyperlink accurately describes the content as it appears on the Site; (ii) each
page within our Site is displayed in full, without any accompanying frame,
border, margin, design, branding, trademark, advertising or promotional
materials not originally displayed on the applicable page within our Site; and
(iii) you do not represent in any way, expressly or by implication, that you
have received the endorsement, sponsorship or support of the Site, Fulcrum
Strength & Sports Performance, or its agents. You may not copy any portion
of the Site or Content to a server, except as part of an incidental caching of
pages. If you wish to link to or obtain a license with regard to the Site or
the Content other than as described herein, you must contact us by email at
train@fulcrumsp.com and receive our written consent before doing so. If we have
provided links or pointers to other websites, then no inference or assumption
should be made and no representation should be implied that we are connected
with, operate or controls those websites. We are not responsible for the
content or practices of third party websites that may be linked to the Site.
The Site may also be linked to other web sites operated by companies affiliated
or connected with Fulcrum Strength & Sports Performance. When visiting
other websites, however, you are subject to and should review each websites
individual terms of use and privacy policy. We take no responsibility for third
party advertisements which are posted on the Site, nor do we take any
responsibility for the goods or services provided by such advertisers.
GYM MEMBER APP SUBSCRIPTION,
BILLING, AUTOMATIC RENEWALS, & CANCELLATION
Gym member app is the
Fulcrum Strength & Sports Performance Digital Membership. Gym member app
offers access to exclusive premium content and features available for purchase
as a subscription via the Application (the Gym member app Subscription). The
Gym member app Subscription is currently only available to residents of the
United States and by purchasing a Gym member app Subscription, you represent
and warrant that you are a resident of the United States. We reserve the right
to modify the content, features, pricing, and availability of the Gym member
app Subscription at any time. The following terms are applicable if you
purchase a Gym member app Subscription via the Apple App Store or Google Play
store (each, an App Store).
Payment authorization. If
you make an in-app purchase of the Gym member app Subscription via an App
Store, you authorize the App Store to charge your credit card or other payment
method for the Gym member app Subscription at the rate applicable at the time
of your initial agreement to subscribe (unless changed by us as described
below), plus any applicable local, state, or federal taxes. You may be
responsible for other charges imposed by your credit card Gym member provider
or financial service Gym member app in connection with your subscription.
Billing for in-app purchases via an App Store will be Gym member app processed
by the App Store Gym member provider according to their terms and may be
subject to other third party terms. The timing of your billing cycle may be
subject to change (for example, due to a failure of your payment method caused
by inadequate funds or an expired credit card).
Payment failures;
chargebacks. If charges for which you are responsible for fail at the time
payment is due, the App Store may continue to attempt to charge your payment
method until such time as your payment method can successfully be charged and
you will remain responsible for the payment of any such charges. You may be
responsible for the costs associated with our efforts to collect amounts due to
the extent permitted by applicable laws. If you contact your credit card or
financial services Gym member provider to request a chargeback of any
subscription fees due to us, we reserve the right to automatically terminate
your account. If our investigation of the chargeback determines that there was
a valid basis for the fees charged to you, we reserve the right, upon written
notice to you, to charge you the reasonable costs associated with responding to
your chargeback.
Subscription price changes.
We reserve the right to make changes to your Gym member app Subscription price,
frequency, or date of charge. If the cost of your subscription increases, you
will be Gym member provided with written notice prior to the billing period in
which the change will become effective and you must opt into the price increase
in order to continue to have access to your Gym member app Subscription
following the end of your current billing period.
AUTOMATIC RENEWING
SUBSCRIPTION
BY PURCHASING A GYM MEMBER
APP SUBSCRIPTION, YOU AGREE THAT YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW ON
A PERIODIC BASIS FOR THE RENEWAL PERIOD DISCLOSED TO YOU AT THE TIME OF YOUR
PURCHASE AND WILL CONTINUE TO RENEW ON THAT BASIS UNTIL YOU CANCEL IN ACCORDANCE
WITH THE CANCELLATION TERMS BELOW. You authorize the App Store to continue to
charge your payment method for the price of your subscription, plus any
applicable taxes, unless and until you cancel.
To avoid the automatic
renewal of your subscription, you must cancel your subscription at least
twenty-four (24) hours prior to the end of your current App Store billing
cycle. If you cancel less than 24 hours before the end of your current billing
cycle, your subscription will continue as scheduled and your cancellation will
take effect at the end of the next billing cycle.
You may cancel your Gym
member app Subscription at any time by going to the subscriptions page in your
App Store account or by following the instructions in the Application settings
menu. If you cancel your subscription prior to the end of your subscription
period, you will be entitled to continue to access your Gym member app
Subscription through to the end of your current subscription period. At the end
of your subscription period, you will immediately lose all access to any
premium Content or features Gym member provided through your Gym member app
Subscription.
GYM MEMBER APP PROMOTIONS
AND TRIALS
We may offer special Gym
member promotional pricing and trials for Gym member app Subscriptions (each, a
Gym member promotional Subscription) which may be subject to additional terms
from these Terms of Use. Any additional terms will be disclosed to you at or
prior to your Gym member promotional Subscription sign-up. At the end of your
Gym member promotional Subscription term, your subscription will automatically
renew at the price and for the duration disclosed to you at the signup of your
Gym member promotional Subscription. If your Gym member promotional
Subscription includes a free trial, you will be required to Gym member provide
the App Store with a valid payment method at signup, and the App Store may
attempt to validate your payment method prior to the start of your free trial.
YOU AUTHORIZE THE APP STORE TO CHARGE YOUR PAYMENT METHOD AT THE END OF YOUR
FREE TRIAL. TO AVOID BEING CHARGED, YOU MUST CANCEL YOUR SUBSCRIPTION AT LEAST
24 HOURS BEFORE THE END OF YOUR FREE TRIAL PERIOD.
While you may cancel your
Gym member app Subscription at any time, we do not offer refunds or credits,
except in our sole discretion, or as required by applicable laws. If we do
issue a refund or credit, we are under no obligation to offer similar refunds
or credits in the future.
LATE FEES AND CANCELLATION
POLICY
When booking a service at
the gym there is a 24 hour cancelation policy. If you need to cancel within 24
hours of your appointment time or class, you forfeit the value or credit for
that appointment or class. If you are on a strength plan membership and cannot
attend your regularly scheduled appointment, you may re-book another slot
during the same week as long as there is an opening available. There are no
refunds for missed appointments. Custom online programs are non refundable. To
place on hold, downgrade or cancel custom online subscription, changes must be
made before the end of the billing cycle before new billing cycle charge is
completed.
These Terms of Use will be
effective on the date you first use the Services and will remain in effect as
long as you still have an account and/or continue to use the Services, or until
they are terminated by us as set forth in this Section 5.
We may in our sole
discretion, and for any reason, immediately and without notice to you, disable,
suspend, or terminate your account, in whole or in part, or your right to
access the Services, including in the event of your actual or suspected
unauthorized use or misuse of the Services or violation of these Terms of Use.
In addition, we reserve the right to modify or discontinue the Services or any
portion thereof at any time upon reasonable notice to you.
Upon termination of your
account, the following sections shall survive termination: Section 2 (Privacy
Policy); Section 3.2 (Ownership of Content); Section 3.3 (Fulcrum Strength
& Sports Performance Marks); Section 3.6 (User Submissions; Rights You Grant
Fulcrum Strength & Sports Performance); Section 7 (Disclaimer of
Warranties); Section 8 (Limitation of Liability); Section 9.2 (Assumption of
Risk); Section 10 (Release; Indemnification); Section 12 (Miscellaneous);
Section 13 (Dispute Resolution).
Upon termination of your
account all rights granted to you under these Terms of Use will also terminate,
and you must cease all use of the Application and uninstall all copies of the
Application from your mobile device.
We will not be liable to you
or any third party for compensation or damages of any sort as a result of the
termination of your account and the termination of your account will not
preclude us from seeking any other right or remedy we may have under law or
equity, now or in the future.
TO THE FULLEST EXTENT
PERMITTED BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE
SERVICES, INCLUDING THE APPLICATION, THE GYM MEMBER APP SUBSCRIPTION, THE SITE
OR ITS CONTENTS, OR ANY SITE WITH WHICH IT IS LINKED, WHICH ARE EACH PROVIDED
FOR USE "AS IS" AND ON AN "AS AVAILABLE" BASIS. WE DISCLAIM
ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED
WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY AND FITNESS FOR
A PARTICULAR PURPOSE, WITH RESPECT TO THE SERVICES, THE APPLICATION, THE SITE,
THEIR CONTENTS, AND ANY SITE WITH WHICH THE SITE MAY BE LINKED. WE DO NOT
WARRANT THAT THE APPLICATION, THE SITE, ITS SERVERS OR E-MAIL SENT FROM US WILL
BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). WE ALSO MAKE NO
REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE APPLICATION OR THE GYM MEMBER
APP SUBSCRIPTION WILL MEET YOUR
REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE WITH ANY SOFTWARE,
APPLICATIONS, HARDWARE, OR WHETHER INFORMATION ACCESSIBLE VIA THE APPLICATION,
THE SITE, OR ANY SITE WITH WHICH IT IS LINKED, IS ACCURATE, COMPLETE, OR
CURRENT. WE DO NOT GYM MEMBER APP PROVIDE ANY REPRESENTATIONS OR WARRANTIES
AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE
COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. WE DO NOT MAKE ANY
REPRESENTATIONS OR WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE OR THAT WE WILL CONTINUE TO SUPPORT ANY FEATURE OF THE SERVICES. YOU
ACCEPT THAT OUR PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES, AND SUPPLIERS SHALL HAVE THE BENEFIT OF THIS CLAUSE.
TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, WE, ON BEHALF OF OUR EMPLOYEES, AND SUPPLIERS,
EXCLUDE AND DISCLAIM LIABILITY FOR ANY INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, LOSS
OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, OR
OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE
USE OF THE SERVICES OR ANY CONTENT PROVIDED ON THE APPLICATION OR THE SITE.
THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON
CONTRACT, EQUITY, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM LIABILITY FOR ALL
CLAIMS ARISING FROM OR ASSOCIATED WITH YOUR USE OF THE SERVICES SHALL BE
LIMITED TO PROVEN DIRECT DAMAGES NOT EXCEEDING THE GREATER OF: (I) THE AMOUNT
PAID, IF ANY, BY YOU FOR YOUR USE OF THE SERVICES IN THE LAST 12 MONTHS PRECEDING
THE EVENT THAT GAVE RISE TO SUCH CLAIM(S) OR (II) TEN ($10) DOLLARS. THE
FOREGOING SHALL NOT PRECLUDE RECOVERY OF DAMAGES FOR PERSONAL INJURY, LOSS OR
DAMAGE TO PERSONAL PROPERTY, OR UNAUTHORIZED USE OR DISCLOSURE OF PERSONALLY
IDENTIFIABLE INFORMATION CAUSED BY Fulcrum Strength & Sports Performance:
GROSS NEGLIGENCE, RECKLESSNESS, FRAUD OR OTHER WILLFUL, UNCONSCIONABLE OR
INTENTIONAL MISCONDUCT. NOTHING HEREIN
SHALL BE CONSTRUED TO LIMIT THE CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER
TO RECOVER ATTORNEYS FEES OR OTHER REMEDIES AFFORDED BY STATUTE OR OTHER LAW.
HEALTH
WARNING
The health and fitness
content provided through the Services is designed for educational and
informational purposes only and is not intended to be, nor does it constitute,
medical or other professional healthcare advice. We strongly recommend that you
consult with your physician before beginning any exercise Gym member program.
It is your responsibility to evaluate your own medical and physical condition
to determine whether to participate in an exercise Gym member program. Always
check your surroundings before exercising. If you experience faintness,
dizziness, pain or shortness of breath at any time while exercising you should
stop immediately. You represent and
warrant that you are in good physical condition and have no medical reason or
impairment that might prevent you from your intended use of the Services.
You understand and expressly
agree that there are risks inherent in physical activity and your use of the
Services may involve potentially dangerous physical activities that may lead to
minor injuries or major injuries, up to and including death. In consideration
for your use of the Services, you understand and voluntarily accept full
responsibility for the risk of injury or loss arising out of or related to your
use of the Services. You further agree that Fulcrum Strength & Sports
Performance, and its employees, and independent contractors of all such
entities will not be liable for any injury including, without limitation,
personal, bodily, or mental injury, disability, death, economic loss or any
damage to you, your spouse or domestic partner, unborn child, heirs, or
relatives resulting from the negligent conduct or omission of any member of the
Fulcrum Strength & Sports Performance or anyone acting on their behalf,
whether related to exercise or not. Because physical exercise can be strenuous
and subject to risk of injury, including serious injury or death, the Club
urges you to obtain a physical examination from a doctor before using any
exercise equipment or participating in any exercise activity. You (each member,
guest, or participant) agree that if you engage in any physical exercise or
activity, or use any club amenity on the premises or off premises including any
sponsored club event, you do so entirely at your own risk. Likewise, dietary
modifications can cause a variety of changes and can create problems, including
as it relates to your energy, stamina, appetite, and mood. Any recommendation
for changes in diet including the use of food supplements, weight reduction
and/or body building enhancement products are entirely your responsibility and
you should consult a physician prior to undergoing any dietary or food
supplement changes. You agree that you are voluntarily participating in these
activities and use of these facilities and assume all risk of injury, illness,
or death. You also assume responsibility for any loss, damage, or disappearance
of your personal property.
The assumption of risk also
includes, without limitation, all injuries or illness which may occur, as a
result of: (a) your use of all amenities and equipment in the facility and your
participation in any activity, class, program, personal training or instruction;
(b) the sudden and unforeseen malfunctioning of any equipment; (c) our
instruction, training, supervision, or dietary recommendations; (d) any on-line
or virtual training; or (e) your slipping and/or falling while in the club, or
on the club premises, including adjacent sidewalks and parking areas. This
assumption of risk also includes the possibility of the presence of or
transmission of any bacteria, viruses, or infectious diseases.
To the fullest extent
permitted by law, you hereby forever release, waive and discharge each member
of the Fulcrum Strength & Sports Performance from any and all claims,
demands, injuries, damages, actions or causes of action related to your use of
the Services, any content you submit, post to, or transmit through the
Services, or your breach or alleged breach of these Terms of Use (collectively,
Claims) against any member of the Fulcrum Strength & Sports Performance or
anyone acting on their behalf. Further,
you hereby agree to defend, indemnify and hold harmless each member of the
Fulcrum Strength & Sports Performance from and against all liabilities,
claims, damages and expenses (including reasonable attorneys fees and costs)
arising from or related to any such Claims. If you live in a jurisdiction that
does not allow for the waiver of liability, the above waiver of liability does
not apply to you.
CONTACTING Fulcrum Strength
& Sports Performance
If you have a question,
comment, issue, or wish to resolve a complaint regarding your use of the
Services, you can contact us via the following methods:
Questions, comments, or
issues with this site should be addressed to the management at
train@fulcrumsp.com
Questions, comments, or
issues with the Application or your Gym member app Subscription should be
addressed to train@fulcrumsp
The website www.fulcrumsp.com
is operated by Fulcrum Strength & Sports Performance, LLC.
1.
GENERAL PROVISIONS
These Terms of Use operate
to the fullest extent permissible by law. If any provision of these Terms of
Use is held by a court unlawful, void or unenforceable, that provision is
deemed severable from these Terms of Use, will be substituted with a valid and
enforceable provision reflecting the intent of the invalid provision, and does
not affect the validity and enforceability of any remaining provisions. If
brought before the court, the court or arbitrator shall award attorney fees to
the prevailing party. No provision of these Terms of Use shall be waived except
with our prior written consent. The failure to exercise, or delay in
exercising, any right or remedy under these Terms of Use will not operate as a
waiver. These Terms of Use may be assigned by us in our sole discretion.
Headings are for reference purposes only and in no way define, limit, construe
or describe the scope or extent of such section. Failure to act with respect to
a breach of these Terms of Use does not waive our right to act with respect to
subsequent or similar breaches. These Terms of Use set forth the entire
understanding and agreement between us with respect to the subject matter
hereof.
2.
GOVERNING LAW, VENUE
These Terms of Use shall be
governed by, and construed in accordance with U.S. Federal laws and the laws of
the State of Washington, without giving effect to any principles of conflicts
of law. For any claims not subject to mandatory arbitration pursuant to these
Terms of Use (except for claims that may properly be brought in a small claims
court of competent jurisdiction in the county or other jurisdiction where you
reside), you agree to submit to the exclusive jurisdiction of the courts of the
State of Washington or, if appropriate, the United States District Court for
the State of Washington for resolution of any dispute, action or proceeding
arising in connection with these Terms of Use or your use of the Services, and
you further irrevocably waive any right you may have to trial by jury in any
such dispute, action or proceeding.
1. MANDATORY ARBITRATION AND
CLASS ACTION WAIVER
General. If you are a user
based in the United States, in the unlikely event that we are unable to resolve
a complaint you may have to your satisfaction (or we are unable to resolve a
dispute with you after attempting to do so informally), subject to your right
to opt-out below, You and Fulcrum Strength & Sports Performance agree to
resolve such dispute through binding arbitration or small claims court on an
individual basis rather than to litigate the dispute before a judge or jury in
a court of general jurisdiction.
Arbitration utilizes a neutral arbitrator instead of a judge or jury and
the procedures are generally simpler and more limited than those applicable to
a lawsuit in court. Arbitration is subject to limited review by courts, but an
arbitrator can award the same damages and remedies that a court can award. For
the purposes of this arbitration provision, a dispute between us shall be
broadly construed to mean any dispute, claim, or controversy between you and
Fulcrum Strength & Sports Performance arising from or relating to these
Terms of Use or your access to or use of the Services, whether based in
contract, tort, warranty, regulation, statute, or any other legal or equitable
basis. You may opt out of this arbitration clause by emailing train@fulcrumsp.com
within 30 days of signing up.
2.
CLASS ACTION WAIVER
To the fullest extent
permitted by law, you and Fulcrum Strength & Sports Performance acknowledge
and agree that we each are waiving the right to a trial by jury and the right
to participate in a class action, either in court or in arbitration. This means
that neither you or Fulcrum Strength & Sports Performance may join claims
in arbitration with or against other users, or litigate in court or arbitrate
any claims as a representative or member of a class and that the arbitrator may
not consolidate any claims into a class proceeding. However, if this class
action waiver is held unenforceable as to all or some parts of a dispute, to
the extent that any claims must proceed on a class, consolidated, or
representative basis, such claims must be litigated in the courts of the State
of Washington or, if appropriate, the United States District Court for the
State of Washington and not in arbitration, with any remaining parts proceeding
in individual arbitration.