- The “Fitness Fusion Sites” shall mean all areas and services offered or available on the interactive online service operated by Fitness Fusion Nutrition and/or its affiliates on the World Wide Web. The Fitness Fusion sites consist of information, services and content provided by Fitness Fusion Nutrition and/or its affiliates and/or third parties.
- Fitness Fusion shall have the right at any time to change or discontinue any aspect or feature of the Fitness Fusion including, but not limited to, the content, hours of availability, and equipment needed for access or use. Such changes, modifications, additions or deletions shall be effective immediately without further notice thereof. Amendments to the terms and conditions contained herein may be given by means including but not limited to, posting on the Fitness Fusion Sites a revised version of this Agreement or notification by electronic mail. Any use of the Fitness Fusion Sites after such notice shall conclusively be deemed to be acceptance of such changes, modifications, additions or deletions. The user agrees to review the terms and conditions of this Agreement periodically to be aware of such revisions.
- Use of the Fitness Fusion Sites.
- A. The Fitness Fusion Sites contain copyrighted material; trademarks and other proprietary information including text, software, photos, video, graphics, music and sound, and the entire contents of the Fitness Fusion Sites are copyrighted as a collective work under the United States copyright laws. Fitness Fusion is the owner of the copyright in the entire Fitness Fusion Sites. Fitness Fusion owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. Each third party content provider owns the copyright in content original to it. You may not modify, publish, transmit, display, participate in the transfer or sale, create derivative works, or in any way exploit the content of the Fitness Fusion Sites or any portion of it. Except as otherwise expressly permitted under copyright law, you may not copy, redistribute, publish, display or commercially exploit any material from the Fitness Fusion Sites without the express permission of Fitness Fusion and, if applicable, the copyright owner. In the event of any permitted copying, redistribution or publication of material from the Fitness Fusion Sites, no changes in or deletion of author attribution, trademark, legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading or copying copyrighted material.
- B. You hereby grant to Fitness Fusion and its respective affiliates worldwide, royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any e-mail, video, graphic, data, or information sent by you to Fitness Fusion (in whole or in part) and/or to incorporate it in other works in any form, media or technology now known or later developed.
- C. You shall provide Fitness Fusion with accurate, complete and updated information provided by you at the time of your purchase.
- D. The Fitness Fusion Sites contain links to other Web sites, resources and advertisers. Fitness Fusion is not responsible for the availability of these external sites nor does it endorse or is it responsible for the contents, advertising, products or other materials made available on or through such external sites. Under no circumstances shall Fitness Fusion be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to a user in connection with the use of or reliance on any content, goods or services available on such external site. You should direct any concerns to such external site’s administrator or webmaster.
- E. You agree not to take any action to interfere with the function or accessibility of the Fitness Fusion Site or to take any action to restrict the access of others thereto.
- F. The foregoing provisions of this Section 3 are for the benefit of Fitness Fusion, its affiliates, third party content providers and licensors, and each shall have the right to assert and enforce such provisions directly on its own behalf or jointly with others.
- G. Fitness Fusion has carefully designed the Fitness Fusion Site with the purpose of delivering certain content to users in a particular format and with a particular appearance. No third party shall have the right to utilize the content of the Fitness Fusion Site in any way that interferes with that purpose. In particular, Fitness Fusion prohibits any party from displaying the content on the Fitness Fusion Sites in any format where third party advertising or other materials that Fitness Fusion did not authorize in writing is viewed or viewable together with Fitness Fusion’s proprietary content.
- Disclaimer of Warranty; Limitation of Liability.
- A. YOU EXPRESSLY AGREE THAT USE OF THE FITNESS FUSION SITE IS AT YOUR SOLE RISK. NEITHER FITNESS FUSION, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE FITNESS FUSION WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE FITNESS FUSION SITE OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, SERVICE OR PRODUCTS PROVIDED THROUGH THE SITES.
- B. THE FITNESS FUSION SITES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
- C. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED, DIRECTLY OR INDIRECTLY, BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT FITNESS FUSION IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
- D. IN NO EVENT WILL FITNESS FUSION OR ANY PERSON OR ENTITY INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE FITNESS FUSION SITE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE FITNESS FUSION OR OUT OF THE BREACH OF ANY WARRANTY. YOU HEREBY ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION 4 SHALL APPLY TO ALL CONTENT ON THE FITNESS FUSION SITE. FITNESS FUSION’S LIABILITY TO USERS, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID TO FITNESS FUSION.
- E. FITNESS FUSION NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT ON THE FITNESS FUSION SITE, NOR FOR ANY OFFENSIVE, DEFAMATORY OR OBSCENE POSTING MADE BY. UNDER NO CIRCUMSTANCES WILL FITNESS FUSION BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE CONTENT ON THE FITNESS FUSION SITE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE FITNESS FUSION SITES. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING BUT NOT LIMITED TO FINANCIAL, HEALTH, OR LIFESTYLE INFORMATION, OPINION, ADVICE OR OTHER CONTENT.
- F. FITNESS FUSION DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCTS OR SERVICES OFFERED THROUGH THE FITNESS FUSION SITES (WITH THE SOLE EXCEPTION BEING WRITTEN WARRANTIES PROVIDED IN CONNECTION WITH FITNESS FUSION PRODUCTS OR SERVICES) AND WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN USERS AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. FITNESS FUSION MAKES PRODUCTS OR SERVICES AVAILABLE ON THE FITNESS FUSION SITES WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
- You agree to defend, indemnify and hold harmless Fitness Fusion, its affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys’ fees, arising out of the use by you of the Fitness Fusion Sites, including claims by other users of your equipment, access or membership.
- Fitness Fusion shall have the right to immediately terminate this Agreement with respect to any user which Fitness Fusion, in its sole discretion, considers to be unacceptable, or in the event of any breach by you of this Agreement. The provisions of Sections 3, 4, 5, 6, 7, and 8 shall survive termination of this Agreement.
- All trademarks appearing on the Fitness Fusion Sites are the property of their respective owners, including, in some instances, Fitness Fusion, and/or affiliated companies.
This Agreement and any operating rules for the Fitness Fusion Sites established by Fitness Fusion constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all previous written or oral agreements between the parties with respect to such subject matter. This Agreement shall be construed in accordance with the laws of the State of North Carolina without regard to its conflict of laws rules. Any dispute arising under or relating to this Agreement or any Fitness Fusion Site shall be brought in state or federal courts in Charlotte, North Carolina, and you hereby irrevocably consent to the jurisdiction of such courts. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. You also give full permission to Fitness Fusion to charge other accounts provided on items purchased and not paid for. The section headings used herein are for convenience only and shall not be given any legal import.