Last Modified on February 23, 2015
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
You must agree to this ToU in order to use the App, the Site and/or the Service. If you use the App, the Site and/or the Service, or click to accept or agree to this ToU if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToU and your agreement to all of its terms and conditions. By accepting this ToU or using the App, the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToU, then you may not use the App, the Site or the Service.
1. ToU Updates. FitTrace may update this ToU at any time and FitTrace will post the updated version of this ToU on the App and/or the Site. You understand and agree that you will be deemed to have accepted the updated ToU if you use the App, the Site or the Service after the updated ToU is posted on the App and/or the Site. If at any point you do not agree to any portion of this ToU then in effect, you must immediately stop using the App, the Site and the Service.
2. Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the App, the Site and the Service. You acknowledge and agree that FitTrace may make changes to the App, the Site and/or the Service at any time without notifying you in advance.
3. Termination of Service. FitTrace reserves the right to deny service to any person or entity at FitTrace’s sole and absolute discretion. You acknowledge and agree that FitTrace may stop providing the App, the Site and/or the Service or restrict your use of the App, the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToU and/or if FitTrace suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If FitTrace disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
4. Accounts and Security.
4.1. Account. To access certain aspects of the Service, you must have an account. You can create an account by completing the registration process. You may be required to provide information about yourself as part of the registration process or your continued use of the Service. You agree that any registration information that you submit to FitTrace will be correct, accurate and up to date.
4.2. Fees. You agree to pay all fees and applicable taxes incurred by you or anyone using your account. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. FitTrace may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of this ToU or posting such changes elsewhere on the App and/or the Site. If there is a dispute regarding your payment of fees, or the Service, FitTrace shall have the right to terminate your account without prior notice. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
4.3. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify FitTrace immediately if you become aware of any unauthorized use of your password or of your account.
4.4. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account. You may not disclose your password to anyone else.
4.5. Cancellation by You. You have the right to cancel your account at any time. You may cancel your account by emailing email@example.com, by calling us at 323-484-3484 or by clicking the cancel link available on the App and/or the Site. Once you cancel your account, content previously shared with other users may remain viewable by those users until they delete such content.
4.6. Termination by FitTrace. FitTrace may at any time terminate your account if:
a. FitTrace determines that you are (a) in breach of or otherwise acting inconsistently with this ToU or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to FitTrace;
b. FitTrace determines it is required by law to terminate your account; or
c. FitTrace decides to stop providing the Service or critical portions of the Service in the country where you reside, access the App, the Site or use the Service or FitTrace determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service.
4.7. Effect of Account Termination or Cancellation. If you voluntarily terminate your account or allow that account to lapse, you will be able to reactivate that account at any time through the account interface on the App and/or the Site. Accounts terminated by FitTrace for any type of abuse including, without limitation, a violation of this ToU, may not be reactivated for any reason.
5. App Use Requirements.
5.1. Installation. To use the service on a mobile application (an “App”), you will be required to install the App on one or more mobile devices that you own or control and that meet the minimum specifications provided by FitTrace.
5.2. Updates. FitTrace may require that you download and install updates to the App from time to time. You acknowledge and agree that FitTrace may update the App with or without notifying you and add or remove features or functions to the App at any time in its sole discretion. You acknowledge and agree that FitTrace has no obligation to make the App available to you, make any subsequent versions of the App available to you or to continue to support the App in any way. You acknowledge that your access to the App may not be continuous, features may change during your use of the App, and FitTrace may terminate your access to the App or stop offering the App at any time.
5.3. Agreements. You acknowledge that you may only use the App in connection with the Service provided through the App in accordance with this Agreement. The requirements hereunder and this Agreement may change as the App and/or Service evolve.
6. License; Restrictions and Conditions of Use.
6.1. License. Subject to the terms and conditions of this Agreement and for the sole purpose of using the Service, FitTrace hereby grants you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to (i) install the App on one or more mobile devices which are owned by you, are under your control and which meet FitTrace’s minimum specifications; and (ii) view, review and utilize the App and any related information provided to you by FitTrace.
6.2. Use of the Site. FitTrace permits you to view and use the App and/or the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the App, the Site or through the Service.
6.3. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the App and/or the Site provided by FitTrace. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions in any robots.txt file present on the App, the Site, or the Service.
6.4. No Violation of Laws. You agree that you will not, in connection with your use of the App, the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the App, the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
6.5. Use Restrictions. You may not connect to or use the App, the Site or the Service in any way that is not expressly permitted by this ToU.
a. You may not: (a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Service; (b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Service, including, without limitation, through sublicense, to any other person or entity without the prior written consent of FitTrace; or (c) make any false, misleading or deceptive statement or representation regarding FitTrace and/or the App, the Site or the Service.
b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the App, the Site and/or the Service or any other person’s or entity’s use of the App, the Site and/or the Service (or any servers, systems or networks connected to the App, the Site or the Service); (ii) attempt to gain unauthorized access to the App, the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the App, the Site and/or the Service; (iii) use the App, the Site or the Service for any commercial purpose or the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the App, the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with FitTrace; (iv) use the App, the Site or the Service to (y) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (z) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
6.6. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the App, the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the App, the Site or the Service.
6.7. Violation of this ToU. You acknowledge and agree that you are solely responsible, and FitTrace has no responsibility or liability to you or any other person or entity, for any breach by you of this ToU or for the consequences of any such breach. FitTrace may at its option, terminate its relationship with you, or may suspend your account immediately if it determines you are using the Service contrary to the restrictions found in this Section 6 or any other terms of this ToU.
7.1. Links to the App and/or the Site. Unless otherwise set forth in a written agreement between you and FitTrace, you must adhere to FitTrace’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with FitTrace’s and/or its licensors’ names and trademarks; (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with FitTrace; and (iii) when selected by a user, the link to the Site must display the Site on full-screen and not within a “frame” on the linking Site. FitTrace reserves the right to revoke its consent to the link at any time and in its sole discretion.
8. Intellectual Property.
8.1. Trademarks. The FitTrace name and logo are trademarks and service marks of FitTrace. Unless permitted in a separate written agreement with FitTrace, you do not have the right to use any of FitTrace’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
8.2. Ownership. You acknowledge and agree that FitTrace, or its licensors, owns all right, title and interest in and to the App, the Site and the Service, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the App, the Site and the Service are protected by U.S. and international copyright laws. Further, you acknowledge that the Service may contain information that FitTrace has designated as confidential and you agree not to disclose such information without FitTrace’s prior written consent.
9. Social Networks. The Service may include features that operate in conjunction with certain third party social networking websites that you visit such as Facebook and Twitter (“Social Network Features”). While your use of the Social Network Features is governed by this ToU, your access and use of third party social networking websites and the services provided through these websites is governed by the terms of service and other agreements posted on these websites. It is impossible for FitTrace to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on these third party websites. You understand and acknowledge that your use of the Social Network Features may cause you to violate or breach the terms of service and other agreements posted on these third party websites which could result in the termination of your account and ability to access these third party websites and, in some cases, could give rise to liability for damages. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR USE OF THE SOCIAL NETWORK FEATURES AND THAT FITTRACE WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR USE OF THE SOCIAL NETWORK FEATURES.
11. Location. The App, the Site and the Service are operated by FitTrace in the United States. If you choose to access the App, the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
12. Children. The App, the Site and the Service are not directed toward children under 13 years of age or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to FitTrace.
13. Disclaimer of Warranties.
13.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE APP, THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE APP, THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
13.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITTRACE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
13.3. FITTRACE MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE APP, THE SITE OR THE SERVICE.
13.4. FITTRACE DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE APP, THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE APP, THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE APP, THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE APP, THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
13.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP, THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEIVCE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
14. Limitation of Liability; SOLE AND EXCLUSIVE REMEDY.
14.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FITTRACE, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
a. ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE APP, THE SITE AND/OR THE SERVICE, EVEN IF FITTRACE AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE APP, THE SITE OR THE SERVICE.
14.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF FITTRACE OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, the liability of FitTrace and the Related Parties shall be limited to the fullest extent permitted by law.
15. Indemnification. You agree to indemnify, defend and hold FitTrace and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToU or any other policies that FitTrace may issue for the Site and/or the Service from time to time.
16. Governing Law; Jurisdiction. This ToU is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and FitTrace agree that, except as otherwise provided in Section 17 below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToU or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, FitTrace shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
17. Binding Arbitration.
17.1. Arbitration Procedures. You and FitTrace agree that, except as provided in Section 17.4 below, all disputes, controversies and claims related to this ToU (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in this ToU. In the event of a conflict between the terms set forth in this Section 177 and the JAMS Rules, the terms in this Section 17 will control and prevail.
Except as otherwise set forth in Section 17.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and FitTrace will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToU, (a) you and FitTrace may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND FITTRACE WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
17.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
17.3. Limitations. You and FitTrace agree that any arbitration shall be limited to the Claim between FitTrace and you individually. YOU AND FITTRACE AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
17.4. Exceptions to Arbitration. You and FitTrace agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or FitTrace’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
17.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
17.6. Severability. You and FitTrace agree that if any portion this Section 17 is found illegal or unenforceable (except any portion of Section 17.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.4 is found to be illegal or unenforceable then neither you nor FitTrace will elect to arbitrate any Claim falling within that portion of Section 17.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and FitTrace agree to submit to the personal jurisdiction of that court.
18.1. ToU Revisions. This ToU may only be revised in a writing signed by FitTrace, or published by FitTrace on the Site.
18.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and FitTrace as a result of this ToU or your use of the Site or the Service.
18.3. Assignment. FitTrace may assign its rights under this ToU to any person or entity without your consent. The rights granted to you under this ToU may not be assigned without FitTrace’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
18.4. Severability. If any part of this ToU is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToU shall be given full force and effect.
18.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToU, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
18.6. No Waiver. Our failure to enforce any provision of this ToU shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by FitTrace of any provision, condition or requirement of this ToU shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
18.7. Notices. All notices given by you or required under this ToU shall be in writing and addressed to: FitTrace, Inc., 12021 Wilshire Blvd, Suite 185, Los Angeles, CA 90025, ATTN: Mike DiChiappari.
18.8. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
18.9. Equitable Remedies. You acknowledge and agree that FitTrace would be irreparably damaged if the terms of this ToU were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
18.10. Entire Agreement. This ToU, including the documents referenced in this ToU, constitutes the entire agreement between you and FitTrace with respect to the Site and the Service and supersedes any and all prior agreements between you and FitTrace relating to the Site and/or the Service.
19. Utilizing Your Computer or Other Device. Some of the benefits of the Service require the Service to access information on your computer or other applicable device. You hereby grant permission for the Service to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to the Company’s servers for the purposes of analyzing your device’s performance during use of the Service. Additionally, the Service will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Service.