Terms and Conditions

Terms and Conditions

 

This Terms-of-Service Agreement (“Agreement”) is made by and between FOLLOW MY FITNESS, LLC, a Colorado Limited-Liability Company with a principal place of business at 6030 Hardwick Drive, Colorado Springs, Colorado 80906, (hereinafter “FMF”) and the User; collectively, referred to herein as “the Parties”.

FMF offers a social-media-hosting platform for Trainers to post their original Content and attract Subscribers (“Users”) in the public to view such Content, which a Trainer may charge a fee for, and User desires to make use of FMF’s platform and services, as defined herein.

The User desires to avail themself of FMF’s platform and services, and agree to be bound by the following Terms of Service:

SECTION 1  —   DEFINITIONS

Unless otherwise defined herein, capitalized terms used herein shall have the following meaning:

"CHARGEBACK" shall mean a good-faith demand by a credit-card provider for FMF to make good the loss the credit card provider has incurred because User has without justification disputed a purchase for which User paid for using User’s credit card.

"CONTENT CREATOR" shall mean Trainer, or one of Trainer’s Users, who uploads Content on Trainer’s Website to be viewed by other Users.

"COMMISSION" shall mean the amount calculated as a percentage of the Revenue paid by FMF to view Trainer’s Content or otherwise interact with Trainer via Trainer’s Website.

"FMF" shall mean the social network of Users operating on Subscriber’s Website that enables Users to provide and view User Content and where appropriate, interact with Trainer and/or other Users.

"INCENTIVE PAYMENT" shall mean the payments that are made by FMF to Users who introduce new Users to FMF, which shall be equal to 0% of all the Commissions earned by a referred User.

"PAYMENT PROVIDER" shall mean any third party approved by FMF that enables a User to make payments to Trainer and/or FMF.

"PAYOUT OPTIONS" shall mean the instruction given by Trainer to a Payment Provider as to how a Commission will be transferred by the Payment Provider to Trainer or to one of Trainer’s Subscribers.

"REFUND" shall mean the return of monies to a User after a good-faith dispute, which may be issued prior to a Chargeback.

"REVENUE" shall mean the monies paid by a User to FMF in order to view Trainer or User Content and/or to interact with Trainer or other Users.

"SUBSCRIBER" shall mean a User who follows Trainer and/or another of Trainer’s Subscribers and accesses/views the Trainer/User Content.

“TRAINER” shall mean a primary registered User that creates and posts Content on FMF’s platform to be viewed/accessed by other Users, perhaps for a fee.

"USER" shall mean any registered user of Trainer’s Website as hosted by FMF.

"USER ACCOUNT" shall mean the section on the Website that can only be accessed by FMF, Trainer, or the User and that, among other things, details the Payment Provider and Payout Options.

"USER CONTENT" shall mean any and all photos, videos, text, and/or other material (including interaction functionality) uploaded onto Trainer’s Website by a Trainer.

"USER CREDITS" shall mean a prepayment made by Trainer or a User to FMF in order to facilitate access to Trainer/User Content under the terms contained within this Agreement.

"USER INTERACTION" shall mean any functionality offered by a Content Creator that is incorporated in that Content Creator’s Content that is hosted by FMF and that allows a User to interact with Trainer and/or one of Trainer’s other Subscribers.

"WEBSITE" shall mean the website at followmyfitness.com, hosted by FMF.

SECTION 2  —  SERVICES PROVIDED AND RELATED REQUIREMENTS

2.1       General: 

a.   FMF is providing a social-media-hosting platform (“Website”) for a Trainer to post the Trainer’s original Content and/or the original Content of the Trainer’s Subscribers in the public to view such Content, which the Trainer may charge a fee for.  The Website may provide other functionality/applications as determined by FMF.

b.   The Trainer and the Trainer’s Subscribers (as allowed by the Trainer) can create user profiles and upload digital photos and videos onto their user profile, and allow other Users to view/access such Content.

c.   The Trainer can set a monthly subscription price payable by the Trainer’s Subscribers who wish to view/access their User Content and thereby generate revenue from the Trainer’s Subscribers.

d.   Each of the Trainer and the Trainer’s Subscribers shall be bound by these Terms of Service in order to access the Website and enjoy its functionality.  All Users of the Website must accept and agree to these Terms of Service as part of the registration process.

e.   The FMF Website and/or related mobile app may contain links to third-party websites and resources, and if so, such links are provided for the convenience of Users only.  Such third-party links may include advertising links such as, without limitation, banner advertisements and sponsored links.  FMF has no control over the content at such third-party links and, as such, assumes absolutely no responsibility or liability for the content at such third-party links.  The inclusion of any third-party link is not and does not imply an affiliation, sponsorship, endorsement, approval, investigation, verification, or monitoring by FMF of any information contained in any third-party site.  In no event shall FMF be responsible for the information contained on that site or a User’s use of or inability to use such third-party site.  Users should be aware that linked third-party sites may contain rules and regulations, privacy provisions, confidentiality provisions, transmission of personal data provisions, and other provisions that differ from the provisions provided on the FMF Website.  FMF is not responsible for such third-party provisions, and expressly disclaims any and all liability related to such provisions.  Users who choose to access such third-party links do so at their own risk.

2.2       Limitations:

a.   The Website is only offered and available to Users who are 18 years of age or older.  By using the Website, the User represents and warrants that the User is at least 18 years of age and is of legal age to form a binding contract with FMFFMF uses third parties to verify eligibility requirements, which is detailed in FMF’s separate Privacy Policy, which is hereby incorporated by reference.  If a User does not meet these age requirements, then User shall not be allowed to access or use the Website.

b.   FMF reserves the right to make and publish changes to these Terms of Service at any time and at FMF’s sole discretion.  All changes shall be effective immediately from the time FMF publishes said changes, and shall apply to all access to and use of the Website thereafter.  By continuing to use the FMF Website and related services, Users agree to the Terms of Service as modified or as they currently appear.  The Trainers and other Users are hereby notified that they are expected to periodically review the Website’s published Terms of Service so they are aware of any changes, which are binding on all Users.

c.   Any and all information posted by FMF on the Website, including information for “Frequently Answered Questions” followmyfitness.com/FAQs shall not be legally binding on FMF, and is for information purposes only and does not form part of the Terms of Service described herein.

2.3       Communications: 

a.   By using the FMF Website, the Trainer and its Users consent to receiving communications from FMF electronically, including emails and messages posted to the User’s Account, all as discussed FMF’s Privacy Policy followmyfitness.com/Privacy).

b.   The Trainer and its Users acknowledge and agree that all communications that FMF sends to them electronically satisfy any legal requirement that such communications be in writing.  If any User desires to withdraw their consent to receiving communications from FMF, then such consent withdrawal shall be emailed to support@followmyfitness.com.

2.4.      User Content:

a.   Users who upload/post their original User Content to the FMF Website agree that by doing so they have authorized FMF and its other Users to view/access such User Content (though such viewing/access does not include downloading and copying such User Content) for their lawful and personal use.

b.   Each User who is also a Content Creator hereby grants FMF (including FMF’s successors, assigns, and licensees, if any) the right to use, publish, display, perform, reproduce, modify, distribute, and otherwise make third-party disclosures to any such User Content in support of the FMF Website and related functionality.  FMF shall not sell or otherwise transfer any User Content to third parties.

c.   Users who post/uploaded their User Content to the FMF Website acknowledge that the posted/uploaded User Content will be viewable to others and is not considered confidential.

d.   Users must own, or possess a valid license to, all intellectual-property rights in and to the User’s Content.  To the extent the User’s Content incorporates any third-party intellectual property, the User shall secure all rights, licenses, written consents, and/or releases necessary to render the use of such third-party property in the User Content as lawful and non-infringing.

e.   Users shall not upload and post photos that depict minors (persons under the age of 18 years), nor post any personally identifying information about any minors.

f.    Users shall be fully responsible for any User Content they submit to the Website; that is, Users have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

g.   FMF shall not be responsible or liable to any third party for the content or accuracy of any User Content posted by a User of the Website.

h.   Each User who uploads and posts User Content to the Website agree to act as a custodian of records for the subject User Content (e.g., evidence of depicted persons’ ages, intellectual-property licenses and/or assignments, etc.).

2.5.      Intellectual Property Ownership of User Content:

a.   FMF does not own any User Content posted to FMF and any views expressed by Users on FMF do not represent FMF’s views.  All transactions and interactions regarding User Content on FMF are between the Trainer and the Trainer’s Subscribers, with the exception of when FMF acts as the agent of the Trainer to receive payment for the Trainer from one of the Trainer’s Subscribers.  In no circumstance shall FMF be a party to or be responsible for any transaction or interaction between Users and/or between Users and the Trainer.

b.   It is the responsibility of the Trainer and the Trainer’s Subscribers to ensure that any uploaded and posted Content does not infringe one the intellectual-property right of others.  FMF shall not be responsible for any uploaded Content by the Trainer or the Trainer’s Subscribers, including any Content later deemed to infringe on any intellectual-property rights of any third party.

c.   Pursuant to the Safe harbor provisions of the Digital Millennium Copyright Act of 1998 (DMCA), notifications of the posting of copyright-infringing materials owned by third parties can be submitted to admin@followmyfitness.com, whereby FMF shall perform its due diligence and issue take-down notices to Trainer and any affected User accordingly.  FMF’s registered agent with the U.S. Copyright Office is Zac Baker, zac@followmyfitness.comFMF’s full DMCA Notice and Take-Down Policy can be viewed at the following weblink: followmyfitness.com/DMCA.

d.   Each User who uploads and posts User Content to the Website agrees to fully indemnify FMF (including FMF’s successors, assigns, and licensees) against all liabilities, costs, expenses, damages, and losses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable legal and professional costs and expenses suffered or incurred arising out of or in connection with said User Content (such as, e.g., a third-party civil lawsuit alleging copyright infringement).

e.   See Section 5 for more information.

2.6       Payment Processing:

a.   When FMF receives a payment from a User to view User Content uploaded by the Trainer or one of the Trainer’s Subscribers, FMF receives and processes such payment on behalf of the Trainer only.  Any payment due from Trainer to a User are the sole responsibility of the Trainer.

b.   Upon receipt of payment by FMF, the Trainer shall have no right of action against the associated User for non-payment and the Trainer shall be obliged to allow the User to view the User Content and use any interactive functionality of the Website, as applicable.

c.   A User can prepay its required fees and maintain a positive balance on their User Account.

d.   See Section 4 for more information.

2.7       Additional Trainer-Prescribed Terms:  The Trainer may set additional or more-limiting Terms of Service for the Trainer’s Subscribers that are applicable to only the Trainer’s Website/Content so long as such additional Terms of Service do not conflict with FMF’s Terms of Service.

2.8       FMF reserves the right to:

a.   Modify, suspend, or terminate any portion of or the entirety of the FMF Website at any time and without notice; and

b.   Remove/delete any User Content posted on the FMF Website, if in FMF’s reasonable opinion said Content fails to comply with these Terms of Service and/or is violative of any applicable law; and

c.   Monitor the use of the FMF Website (including any Content or messages posted) in order to verify compliance with these Terms of Service and/or any applicable law; and

d.   Investigate any suspected or alleged misuse or unlawful use of the FMF Website and cooperate with law-enforcement agencies in such investigation; and

e.   Disclose information about Users’ use of the FMF Website in connection with any law-enforcement investigation of any suspected or alleged illegal activity, or in response to a lawful court order; and

f.    Restrict, limit, suspend, and/or terminate any User access to the FMF Website or any portion thereof; and

g.   Change the Payment Providers used by FMF, after performing reasonable good-faith efforts to verify the qualifications and good-standing of any prospective new Payment Provider, and after written notification to Trainers and Users (including all applicable details) is transmitted to the Trainer/User Account.

SECTION 3  —  USER ACCOUNT REGISTRATION AND MANAGEMENT

3.1       Creating a User Account:  To become a registered User, an FMF User Account must be created, observing the following:

a.   A User is responsible for providing accurate information for their registration, including:  a valid email address, a username, and a password.  The entry of any inaccurate/invalid information shall be grounds to cancel or suspend the User’s Account   A User’s access and use of the Website is conditioned that all of the User information provided by the User on the Website is correct, current, and complete.

b.   The User agrees that all information provided by the User, including, but not limited to, information provided via any interactive features on the Website, is governed by FMF’s Privacy Policy at followmyfitness.com/Privacy, and the User acknowledges that the User is aware of how and why FMF processes User personal data, as described in FMF’s Privacy Policy.

c.   Access to User Content requires that a User provide valid payment-card information (e.g., credit or debit) to a Payment Provider, and said Payment Provider shall store such payment-card information.  An automatic-account-renewal option is available to the User to select so that monthly payments occur seamlessly, but is not required to be selected and if selected can later be cancelled.  It should be noted that if the automatic-renewal option is not selected (or is cancelled), then the ability of a User to view/access Content will expire as soon as the currently paid-for subscription period expires.

d.   A User may choose to provide and store multiple payment-card details onto their User Account to account for the event whereby the payment of the Revenue from the first payment card listed is rejected (for whatever reason[s]), causing the next-listed payment card to be used for the full payment of Revenue due.

3.2       Deactivating a User Account:

a.   A User Account can be deactivated from the User-Account webpage.

b.   Deactivation of User Account shall take effect as soon as practicable, and all further charges will immediately be stopped.  Access to any User Content will also be immediately stopped, and all associated subscriptions will also be cancelled.

c.   A Trainer/Content Creator can deactivate their User Account; however, the deactivation will only take effect once the current paid-for subscription period has expired and no positive balance on that account remains.

d.   If a User is both a Trainer/Content Creator and a Subscriber/User, then the User Account will be deactivated in two steps:  First the Subscriber/User portion will be deactivated immediately as discussed in Section 3.2.b above, and the Trainer/Content Creator portion of will be deactivated pursuant to Section 3.2.c above.

e.   FMF shall send deactivation notices to the email address listed in the User Account.

3.3       Receiving Commissions:  For a Content Creator to receive payment of Commissions, the Content Creator shall be subject to the following:

a.   The Content Creator shall ensure that their User-Account Payout Options are up-to-date and shall upload a copy of valid form of government-issued identification.

b.   The Content Creator may also need to submit additional legal information as required by the jurisdiction of the residence of the Content Creator (such as, e.g., a completed U.S. IRS W-9 Form for U.S. residents).

c.   The compensation due to the Content Creator shall be paid to the Content Creator by one of FMF’s Payment Providers in accordance with the Content Creator’s User-Account Payout Options.  Please note that FMF does not store any personal payment data disclosed by a Content Creator, unless the Content Creator has specified a desire to be paid via a direct bank transfer from FMF.  (FMF does not store any payment data disclosed by a Content Creator when the Payout Options are registered with a Payment Provider.)

d.   See Section 4 for more information on Commissions.

3.4       User Warranties and Representations:  By registering as a User on the FMF platform, the User affirms each of the following:

a.   The User-Account registration and profile information is truthful and accurate and that any User Content that the User provides/uploads is either the property of the User or, if it is the property of a third party, the User possesses a proper license to use and upload such User Content; that is, the User Content does not infringe the intellectual property rights or any other proprietorial rights of a third party.

b.   The User is at least 18 years of age and is of legal age to form a binding contract with FMF.

c.   If the User previously had registered a User Account with FMF, that previous registration was maintained in good standing and was not terminated or suspended by FMF for violation of these Terms of Service.

d.   The User Account shall only be used for the User’s personal use and that the User shall not transfer or sell the User Account to a third party or otherwise facilitate a third party to access the User Account.

e.   The User agrees that FMF has the right to audit its User Accounts at any time and to verify the User-Account information that was provided, as well as the User’s compliance with these Terms of Service.  If invalid User-Account information is discovered and/or the User is found to not be in compliance with these Terms of Service, then FMF shall have the right to disable, suspend, or terminate the User Account.

f.    If the User is also a Trainer or Content Creator, then the User agrees to not use any third-party Payment Processors to accept payments for subscriptions, or any other such service, that are not an authorized Payment Processor for FMF.

g.   The User acknowledges that the User is fully responsible for any and all activities that occur on the User’s Account and the User is responsible for keeping their login details confidential and secure.  Further, the User agrees to not to disclose their login details to any third party and immediately notify FMF at support@followmyfitness.com if the User believes that their User Account has been compromised by a third party and/or some sort of security breach has occurred.

h.   If the User is using the FMF Website on behalf of a business or other entity, then the User is authorized to grant all the licenses required under these Terms of Service and that the User is authorized to bind the business or other entity to these Terms of Service.

3.5       FMF Warranties and Representations:  FMF does not warrant that the FMF Website and associated applications and functionality will be compatible with all devices and operating systems.  It is the User’s sole responsibility to ascertain whether the FMF Website and associated applications and functionality are compatible with the User’s computing devices.

SECTION 4  —  MANAGEMENT OF SUBSCRIPTIONS AND PAYMENTS

4.1       FMF-Authorized Payment Providers: FMF shall authorize and procure Payment Providers to ensure that Content Creators receive their due Commissions from FMF.

4.2       Payment of Commissions and Transaction-Management Fees:

a.   FMF shall be entitled to charge a transaction-management fee (for providing, maintaining, and operating the FMF Website/platform) of 18% of the total value of Revenue processed when distributing Commissions to Content Creators/Trainers.  The Commissions paid to Content Creators shall be 82% of the total value of Revenue generated by Users following a Trainer/Content Creator to view/access said Content and/or interact with the Trainer.

b.   The Payment Provider is responsible for the storage of the User’s payment-card information, and FMF does not store such information on its servers.  An automatic-account-renewal option is available to the User to select so that monthly payments occur seamlessly, but is not required to be selected and if selected can later be cancelled.  It should be noted that if the automatic-renewal option is not selected (or is cancelled), then the ability of a User to view/access Content will expire as soon as the currently paid-for subscription period expires.

c.   Upon receipt of payment from a User by FMF, the Trainer shall have no right of action against the associated User for non-payment and Trainer shall be obliged to allow the User to view the User Content and use any interactive functionality of the Website, as applicable.

d.   FMF assumes the role as the good-faith agent to facilitate the receipt and holding of Revenue and the dispersal of Payouts to Trainers/Content Creators.

e.   Notwithstanding FMF’s appointment as a Content Creator’s agent to pay any Commissions due pursuant to these Terms of Service, FMF, the Content Creator, and any Users of such Content are non-affiliated and independent parties, whereby no joint venture, employment relationship, or other agency relationship has been established.  As such each party is responsible for meeting all of their respective legal or statutory obligations, including the payment of any required taxes or other payments properly demanded by a regulatory authority.  If a User fails to meet those obligations, then that User shall indemnify FMF for any loss or expense, including management time and reasonable legal fees, that is consequentially incurred by FMF.

f.    ALL PAYMENTS TO VIEW/ACCESS USER CONTENT ARE FINAL AND NON-REFUNDABLE.

g.   If any User payment made is subsequently rejected by the Payment Provider or the User has initiated a Chargeback through their payment-card company, then FMF shall have the right to immediately suspend or deactivate the User Account.  In addition, FMF shall have the right to deduct such a Chargeback from the income/Revenue of the associated Trainer(s)/Content Creator(s), and shall email a notification of such deductions to the affected Trainer(s)/Content Creator(s).

SECTION 5  —  INTELLECTUAL-PROPERTY RIGHTS AND LIMITATIONS

5.1       Intellectual Property Ownership of User Content:

a.   FMF does not own any User Content posted to FMF and any views expressed by Users on FMF do not represent FMF’s views.  All transactions and interactions regarding User Content on FMF are between the Trainer and the Trainer’s Subscribers, with the exception of when FMF acts as the agent of the Trainer to receive payment for the Trainer from one of the Trainer’s Subscribers.  In no circumstance shall FMF be a party to or be responsible for any transaction or interaction between Users and/or between Users and the Trainer.

b.   It is the responsibility of the Trainer and the Trainer’s Subscribers to ensure that any uploaded and posted Content does not infringe one the intellectual-property right of others.  FMF shall not be responsible for any uploaded Content by the Trainer or the Trainer’s Subscribers, including any Content later deemed to infringe on any intellectual-property rights of any third party.

c.   Pursuant to the Safe harbor provisions of the Digital Millennium Copyright Act of 1998 (DMCA), notifications of the posting of copyright-infringing materials owned by third parties can be submitted to admin@followmyfitness.com, whereby FMF shall perform its due diligence and issue take-down notices to Trainer and any affected User accordingly.  FMF’s registered agent with the U.S. Copyright Office is Zac Baker, zac@followmyfitness.com.

5.2       Intellectual Property Owned by FMF:

a.   Other than User Content, the Website and its entire contents, features, and functionality (including, but not limited to, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof), are owned by FMF, FMF’s licensors, and/or other providers of such material and may protected by international copyright, trademark, patent, trade secret, and other intellectual-property or proprietary rights laws.

b.   Users agree to not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on the Website, except for:  (i) automatic caching by the User’s Web browser for display-efficiency purposes; and (ii) the printing or download of one (1) copy of a reasonable number of pages of the Website for the User’s own personal and non-commercial use, where no further reproduction, publication, or distribution of said printouts or downloads shall take place.

c.   The unauthorized use or publication of any FMF-owned materials in violation of this Section 5 shall result in the immediate termination of the User’s use and access to the Website.  In such cases, FMF shall have the right to demand from the User to return or certify the destruction of such unauthorized copies of FMF materials.

d.   Users retain ownership of their own original Content.  However, Users enjoy absolutely no right, title, or interest in or to the Website or any content on the Website, and all rights not expressly granted are reserved by FMF.  Any use of the Website not expressly permitted by these Terms or Service shall be considered a material breach of these Terms or Service, as well as may violate copyright, trademark, and other applicable laws.

e.   The FMF (Follow My Fitness) name, logo, and all related names, logos, product/service names, designs, and slogans are trademarks of FMF and/or its affiliates or licensors.  Users shall not use such marks without first obtaining the express written consent of FMF.  Any other names, logos, product/service names, designs, and slogans (that is, other trademarks and/or service marks) that appear on the Website are the property of their respective owners.

5.3       License to Use Intellectual Property Owned by FMF:

a.   Subject to all of the terms, conditions, limitations, and restrictions contained in these Terms of Service, FMF grants its registered Users (including Trainers) a conditional, revocable, non-transferable, non-sublicensable, non-exclusive and limited license to use the Website and its entire contents, features, and functionality for the User’s own lawful and personal use only (see Sections 5.4 and 5.5, below, for a discussion of acceptable and prohibited uses).

b.   The User acknowledges and agrees that the foregoing license described in Section 5.3.a may be revoked and terminated by FMF at any time and for any reason.  A material breach of these Terms of Service will result in the revocation of said license.

5.4       Acceptable Uses of the Website by Users:  To be an acceptable use of the Website and its entire contents, features, and functionality, Users shall fully comply with these Terms of Service.  In addition, Users may establish links to the Website and its social-media features in the User’s own website, observing the following requirements:

a.   Users may link only to the FMF Homepage, and such use of the links may not damage FMF’s reputation (as determined by the sole discretion of FMF) and may not state or imply that the User or webpage containing the link are somehow affiliated with, or endorsed by, FMF in any way.

b.   Users may not establish a link from any website that is not owned by the User.

c.   Users may not cause any portion of the Website to be displayed on, or appear to be displayed by, any other website.

d.   FMF reserves the right to revoke any linking privileges and social-media features without prior notice, at FMF’s sole discretion.

5.5       Prohibited Uses of the Website by Users:  To be an acceptable use of the Website and its entire contents, features, and functionality, Users shall fully comply with these Terms of Service.  In addition, Users shall not:

a.   Falsify any User-Account-registration information, or make unauthorized use of another's information or content; nor

b.   Use FMF’s Website and any related functionality in any manner or for any purpose that is illegal or unlawful, including engaging in any activity that violates any right of any person or entity; nor

c.   Represent themselves as:  (i) being affiliated with FMF; (ii) an employee or agent of FMF; (iii) another User; or (iv) any other person or entity other than themselves; nor

d.   Falsely state, suggest, or otherwise misrepresent any affiliation, endorsement, an/or sponsorship between the User (or any entity affiliated with the User) and FMF; nor

e.   Copy, reproduce, distribute, modify, or create derivative works from, any portion of FMF’s Website and any related functionality without first obtaining FMF’s express written permission; nor

f.    Use FMF’s Website and any related functionality to transmit, or procure the sending of, any advertising or promotional material (e.g., any “junk mail”, “chain letter”, “spam”, or any other similar solicitation); nor

g.   Engage in any other conduct that restricts or inhibits another person’s use or enjoyment of FMF’s Website and any related functionality, nor engage in conduct that, as determined by FMF, may harm FMF or Users of the Website and/or expose them to liability; nor

h.   Use FMF’s Website and any related functionality for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise compromising the security and well-being of a minor; nor

i.    Create, upload, post, display, publish, or distribute User Content that:  (i)  is obscene, illegal, fraudulent, defamatory, libelous, hateful, discriminatory, threatening or harassing, or in any way which incites violence or violates any of the aforementioned prohibitions; or (ii) violates another's copyright, trademark, right of privacy, right of publicity, or other property/personal right; (iii) or promotes or advertises sex-industry (including escort) services; (iv) or promotes or advertises any illegal materials or substances (e.g., drugs and/or paraphernalia subject to the U.S. Controlled Substances Act); (v) or promotes any illegal activity, or advocates, promotes, or assists any unlawful act; or (vi) causes annoyance, inconvenience, and/or needless anxiety or is likely to upset, embarrass, alarm, and/or annoy any other person; or (vii) involves third-party commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising; (viii) falsely gives the impression that it emanates from or is endorsed by FMF or any other person or entity; nor

j.    Remove, erase, modify, or tamper with any copyright, trademark, or other proprietary rights notice that is contained in any User Content that the User does not own; nor

k.   Use FMF’s Website and any related functionality in any manner that could disable, overburden, damage, or impair the Website and any related functionality or interfere with any other party’s use of the Website and any related functionality, including their ability to engage in real time activities through the Website; nor

l.    Decompile, disassemble, reverse engineer, or otherwise attempt to discover or derive the source code of FMF’s Website and any related functionality/applications; nor

m.  Interfere in any way with the operation of FMF, including or any server, network, or system associated with FMF, and including, without limitation:  hacking, mail-bombing, flooding, overloading, or making "denial-of-service" attacks; probing, scanning or testing the vulnerability of the site or any server, network or system associated with the site; breaching or circumventing firewall, encryption, security or authentication routines; accessing information not intended for the User, or accessing another User's account that the User is not expressly authorized to access; nor

n.   Use FMF for any unauthorized purpose, including, without limitation, for purposes of building a competitive product or service, performance or functionality, or for any other competitive purposes; nor

o.   Use any automated program, tool, or process (including without limitation, web crawlers, robots, bots spiders, and automated scripts) to access FMF or any server, network, or system associated with FMF, or to extract, collect, harvest, or gather content or information from FMF.

5.6       Actions Upon Reported Prohibited Uses of the Website by Users:

a.   If any User-posted Content is reported by another User, and is subsequently verified to not comply with FMF standards, then the Content will be deleted and the User shall be notified via email.  A User who repeatedly violates FMF’s Acceptable Uses policy may be deactivated at the sole discretion of FMF.

b.   If FMF becomes aware that a User is underage, the FMF shall promptly deactivate that User's account and delete all information and Content of that User from the FMF platform.  Parents/legal guardians who become aware of their minor-child has registered on FMF should immediately notify FMF by emailing support@followmyfitness.com.

SECTION 6  —  FMF REFERRAL PROGRAM

6.1       FMF offers a Referral Program that provides Incentive Payments, as described in this Section 6, for Users to introduce others to the FMF Website, who then register as Users.

6.2       Only Users with Accounts in good standing with FMF may participate in the FMF Referral Program.

6.3       The FMF Referral Program is described at the following link: followmyfitness.com/referrals.

6.4       FMF reserves the right to modify or cancel the FMF Referral Program at any time.  However, all Incentive Payments that have already been earned by a User at the time that such modifications or cancellation takes place shall still be honored by FMF.

SECTION 7  —  FMF DISCLAIMERS AND LIMITATIONS OF LIABILITY

7.1       ALTHOUGH THE INFORMATION PROVIDED TO YOU ON THE WEBSITE AND/OR MOBILE APP IS OBTAINED OR COMPILED FROM SOURCES THAT FMF BELIEVES TO BE RELIABLE, FMF CANNOT AND DOES NOT WARRANT OR GUARANTEE THE ACCURACY, VALIDITY, TIMELINESS, OR COMPLETENESS OF ANY INFORMATION OR DATA MADE AVAILABLE TO USERS.

7.2       ALL INFORMATION, PRODUCTS, AND SERVICES ON, OR MADE AVAILABLE THROUGH, THE WEBSITE AND/OR MOBILE APP ARE PROVIDED ON AN "AS-IS" AND "AS-AVAILABLE" BASIS.  FMF DOES NOT WARRANT THAT THE PROGRAM, INFORMATION, OR SERVICES PROVIDED BY FMF OR A USER’S USE OF THE WEBSITE AND/OR MOBILE APP GENERALLY, EITHER EXPRESSLY OR IMPLIEDLY, WILL MEET A USER’S EXPECTATIONS OR WILL BE FIT FOR ANY PARTICULAR PURPOSE.  THE USER AGREES THAT THEIR USE OF THE FMF WEBSITE AND/OR MOBILE APP IS AT THE USER’S SOLE RISK AND THAT THE FMF WEBSITE AND/OR MOBILE APP IS PROVIDED TO THE USER "AS-IS" AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE.

7.3       FMF DISCLAIMS ALL LIABILITY IN THE EVENT A USER’S CONTENT IS ILLEGALLY DISTRIBUTED BY ANOTHER USER; HOWEVER, UPON RECEIPT OF WRITTEN NOTICE OF SUCH AN EVENT, FMF WILL TAKE COMMERCIALLY REASONABLE ACTIONS TO TRY TO PREVENT ANY FURTHER ILLEGAL DISTRIBUTIONS OF SUCH USER CONTENT.

7.4       TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FMF DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

7.5       TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FMF DISCLAIMS ALL LIABILITY IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, UNDER ANY OTHER LEGAL OR EQUITABLE PRINCIPAL, FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNATIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOST PROFITS, LOST DATA/INFORMATION, OR LOST BUSINESS GOODWILL/OPPORTUNITIES) ARISING OUT OF OR RELATED TO THE USER’S USE OF (OR INABILITY TO USE) THE FMF WEBSITE AND/OR ANY OF ITS RELATED FEATURES.

7.6       FMF does not operate or control the products or services offered by clicking on third-party links from the Website.  Only those third parties are responsible for the content and functionality of those links, and FMF is not a party to any transaction between a User and such third parties.

7.7       FMF is only a facilitator for Trainers to present their User Content to, and interact with, other Users.  Other than processing Payments and Payouts as described herein, FMF is not a party to any agreement or transaction between Users.

7.8       FMF also does not warrant or guarantee the following:

a.   That FMF and all of its services and features will be available at any particular time or location; nor

b.   That FMF and all of its services and features will be secure, uninterrupted, and error-free; nor

c.   That any defect or error will be corrected; nor

d.   That FMF and all of its services and features will be free of viruses and other harmful components.  Users are responsible for implementing sufficient security procedures for antivirus protection and for the verification of accuracy of any data input and output, and Users are responsible for maintaining a means to recover/reconstruct any lost data; nor

e.   That use of the Website will be uninterrupted or error free twenty-four hours a day, seven days a week, including periods when FMF may need to carry out maintenance of the Website and/or related features/applications from time to time.  FMF shall use commercially reasonable attempts to carry out maintenance of the Website outside of normal business hours (between 08:00 and 17:00 Mountain Time Zone), and FMF shall try to provide Users with reasonable notice of any planned outages (however, this may not always be possible for emergent situations).

7.7       FMF shall not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses, or other technologically harmful material that may infect a User’s computer equipment, computer programs, data, and/or other proprietary material due to:  (i) the User’s use of the Website or any services or items obtained through the Website; or (ii) the User’s downloading of any material posted on the Website or on any website linked to the Website.

7.8       The use of the FMF Website and associated services and features is solely and entirely conducted at the User’s own risk, unless such disclaimer of risk by FMF is otherwise prohibited by law.

7.9       To the extent allowed by applicable law, in no case shall the total and aggregate liability of FMF to a User for any and all claims arising out of the User’s Use of the Website and its related services and features exceed the sum of $2500.

SECTION 8  —  USER INDEMNIFICATIONS OF FMF

8.1       The User agrees to indemnify and hold harmless FMF and its employees, agents, representatives, successors, and assigns from and against any and all claims, demands, causes of action, actions, suits, proceedings, judgments, orders, damages, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees and legal costs) arising out of or related to any of the following:

a.   The User’s use of the FMF Website or any of its services or features; and

b.   Any User Content created, published, or otherwise made available on the FMF Website/platform by the User; and

c.   Any transaction or interaction between FMF Users; and

d.   The User’s violation of these Terms of Service or any applicable law; and

e.   The failure of the User to pay all applicable taxes or other fees die to any regulatory authority that are resultant from any FMF-related transaction.  (Notwithstanding FMF’s appointment as a Content Creator’s agent to pay any Commissions due pursuant to these Terms of Service, FMF, the Content Creator, and any Users of such Content are non-affiliated and independent parties, whereby no joint venture, employment relationship, or other agency relationship has been established.  As such each party is responsible for meeting all of their respective legal or statutory obligations, including the payment of any required taxes or other payments properly emanded by a regulatory authority.)  If a User fails to meet those obligations, then that User shall indemnify FMF for any loss or expense, including management time and reasonable legal fees, that is consequentially incurred by FMF.

SECTION 9  —  DISPUTE RESOLUTION

9.1       Choice of Law:  These Terms of Service shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to conflicts-of-laws doctrines of such state or other jurisdiction to the contrary, and without the aid of any canon, custom, or rule of law requiring construction against the draftsman.

9.2       Jurisdiction and Venue:  The User and FMF hereby irrevocably agree that the exclusive venue for any arbitration, suit, action, or other proceeding arising out of or in any way related to these Terms of Service shall be in the City and County of Denver, Colorado, and the Parties agree to the exclusive personal jurisdiction and venue of any court in the City and County of Denver, Colorado, and waive defense thereto.

9.3       Time Limit to Bring Cause of Action:  Any cause of action that a User may have with respect to the User’s use of the Website and related features and services must be commenced within one (1) year after the claim or cause of action arises.

9.4       Binding Arbitration:  In the event of a dispute between the Parties that cannot be resolved after good-faith negotiations between themselves, then the Parties agree to binding Arbitration under the Commercial Arbitration Rules of the American Arbitration Association, with the venue to be in the City and County of Denver, Colorado, and shall negotiate in good-faith to select an Arbitrator.  The successful or prevailing party shall be entitled to, and the Arbitrator shall be empowered to award, reasonable attorneys’ fees and other costs incurred in connection with that action, suit, or proceeding, in addition to any other relief to which such party may be entitled.

9.5       Other Damages:  The User acknowledges and agrees that in the event that these terms or Service are materially breached by the User, damages may be an inadequate remedy and other relief including, but not limited to, specific performance and/or injunctive relief from a court of competent jurisdiction within the City & County of Denver, Colorado may be appropriate for the enforcement of these Terms of Service.  Similarly, a party may seek to perfect any judgment from an Arbitrator in the state or federal courts located in the City and County of Denver, Colorado.

SECTION 10  —  GENERAL PROVISIONS

10.1    Severability:  If for any reason a court of competent jurisdiction finds any provision of these Terms of Service, or a portion thereof, to be unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Service, and the remainder of these Terms of Service shall continue in full force and effect.

10.2    No Implied Waiver:  The failure of FMF to enforce any term or condition set out in these Terms of Service shall not be deemed a further or continuing waiver of such term or condition, nor as a waiver of any other term or condition, and any failure by FMF to assert a right or provision under these Terms of Service shall not constitute a waiver of such right or provision.

10.3    Entire Agreement:  Except for the Privacy Policy respecting any User Account with FMF, these Terms of Service constitutes the entire agreement between FMF and the User and it supersedes all prior or contemporaneous communications, agreements, and understandings between FMF and you with respect to the subject matter hereof.

10.4    Force Majeure:  FMF shall not be liable for any failure to perform any of its obligations under these Terms of Service during any period in which such failure to perform arises directly or indirectly out of an act of nature, acts of the public enemy, embargoes, insurrection, riot, or the intervention of any government authority (collectively, “Excusable Cause”), provided that FMF notifies the User of such delay in writing and uses its best efforts to minimize the adverse effect of such events.

 

By checking the below box, I acknowledge that I have read and agree to all of the foregoing Terms of Service.