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IN-SHAPE HEALTH CLUBS, LLC TERMS OF USE FOR WEBSITES AND MOBILE APPLICATIONS

Revised January 30, 2017

 

READ THESE TERMS OF USE.  BY USING AND/OR ACCESSING THIS WEBSITE, YOU ARE AGREEING TO BE BOUND BY THE TERMS SET FORTH HEREIN. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT USE THIS WEBSITE.

 

THESE TERMS OF USE CONTAIN DISCLAIMERS OF WARRANTIES AND LIABILITIES AND OTHER PROVISIONS THAT LIMIT OUR LIABILITY TO YOU.  THESE TERMS OF USE ALSO CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS, CLASS ACTIONS OR OTHER COURT PROCEEDINGS.

 

Introduction

These Terms of Use apply to your access to, and use of, all or part of any website or mobile application of In-Shape Health Clubs, LLC or its subsidiaries and affiliated companies (collectively, “ISHC,” “we,” or “us”), including inshape.com, and any other site, mobile application or online service where these Terms of Use are posted (collectively, the “Sites”). These Terms of Use exclude ISHC health club memberships, In-Shape Personal Training, LLC, personal training services, in-club services, classes and group exercise, and any other products or services that are not offered through the Sites. These Terms of Use do not alter in any way the terms or conditions of any other agreement you may have with ISHC for products, services or otherwise.  

 

In the event there is any conflict or inconsistency between these Terms of Use and any other terms of use that appear on the Sites, these Terms of Use will govern. However, if you navigate away from the Sites to a third party site, you may be subject to alternative terms and conditions of use, as may be specified on such site, which will govern your use of that site.

 

ISHC reserves the right to change or modify these Terms of Use or any policy or guideline of the Sites, at any time and in its sole discretion. If we make material changes to these Terms of Use, we will inform you by posting a notice on the Site(s). Any changes or modifications will be effective immediately upon posting the revisions to the Sites, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Sites will confirm your acceptance of such changes or modifications; therefore, you should frequently review these Terms of Use and applicable policies to understand the terms and conditions that apply to your use of our Sites. If you do not agree to the amended terms, you must stop using the Sites.

 

Use by Minors

The Sites are not targeted towards, nor intended for use by, anyone under the age of 18. YOU MUST BE AT LEAST AGE 18 TO ACCESS AND USE THE SITES. By using the Sites, you represent that you are at least 18 years old.

 

Children’s privacy is very important ISHC. We adhere to the United States Children's Online Privacy Protection Act (“COPPA”). COPPA restricts marketing to children under 13 years of age and sets forth certain requirements for website operators to protect children's privacy and safety online, including informing parents and/or legal guardians how we collect, use, and disclose personal information from children under 13 years of age, as well as, how to obtain verifiable consent from a parent/legal guardian in order for children to use certain features of on a website. ISHC will not knowingly allow anyone under 13 years of age to provide us with any personal information about themselves through our Sites.  If a child has provided us with personal information without the consent of a parent/legal guardian, we ask the parent/legal guardian of that child to contact ISHC immediately at: webadmin@inshape.com. We will use all reasonable efforts to promptly delete the child's personal information from our servers.

 

Account Registration and Eligibility

In order to participate in certain areas of our Sites, you may need to create or register for an account. In such a case, you agree to (a) create only one account; (b) provide accurate, current and complete information when creating your account; (c) maintain and promptly update your account information; (d) maintain the security of your account by not sharing your password with others and restricting access to your account and your computer; (e) promptly notify ISHC if you discover or otherwise suspect any security breaches relating to the Sites; and (f) take responsibility for all activities that occur under your account and accept all risks of unauthorized access.

 

Privacy

Please read the ISHC Privacy Policy carefully to understand how ISHC collects, uses and discloses personally identifiable information from its users. By accessing or using the Sites, you consent to all actions that we take with respect to your data and any information you submit to us through the Sites consistent with our Privacy Policy.

 

Purchase Transactions; Sales Terms

In the event we make products or services available to purchase through the Sites (a “Purchase Transaction”), you may be asked to supply certain relevant information, such as your payment card number and expiration date, and billing and shipping addresses. In such event, you represent and warrant that you have the right to use the payment information you provide us in connection with a Purchase Transaction.

 

ISHC reserves the right, including without prior notice, to limit or discontinue making available any services or products available through the Sites; to provide for restrictions and conditions on the honoring of a discount, promotion or coupon; to prohibit a user from making any Purchase Transaction; and to refuse to provide any user with a service or product. We make no representations as to the accuracy or completeness of descriptions, pictures or illustrations of services or products, and such information and the availability of any service or product (including the validity of price, discount, promotion or coupon) is subject to change at any time without notice.

 

Without limiting the foregoing, ISHC reserves the right to revoke any offer and correct any errors, inaccuracies or omissions, including after an order has been submitted (whether or not the order has been confirmed and your credit card charged). If an order is cancelled after you have been charged, ISHC will issue a credit to your credit card account or bank account (for debit card purchases) in the amount of the charge (see your individual bank’s or card issuer’s policies as to when this amount will be credited to your account). Refunds and exchanges will be subject to ISHC’s applicable refund and exchange policies. You agree to pay all charges (and any applicable taxes) incurred by you through the Sites, at the prices in effect when such charges are incurred.

 

Limited License to Use Proprietary Materials; Copyright

Unless otherwise indicated, the Sites and all content and other materials therein, including, without limitation, the ISHC logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Proprietary Materials") are the proprietary property of ISHC or its licensors or users and are protected by U.S. and international copyright laws.

 

You are granted a limited, non-sublicensable license to access and use the Sites and Proprietary Materials for personal, informational and purchasing purposes only. Such license is subject to the Terms of Use and does not include: (a) any resale or commercial use of the Sites or Proprietary Materials; (b) the collection and use of any product listings, pictures or descriptions; (c) the distribution, public performance or public display of any Proprietary Materials; (d) modifying or otherwise making any derivative uses of the Sites and the Proprietary Materials, or any portion thereof; (e) use of any data mining, robots or similar data gathering or extraction methods; (f) downloading (other than the page caching) of any portion of the Sites, the Proprietary Materials or any information contained therein, except as expressly permitted on the Sites; or (g) any use of the Sites or the Proprietary Materials other than for their intended purpose. Any use of the Sites or Proprietary Materials other than as specifically authorized herein, without the prior written permission of ISHC, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws.  Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring in any manner, whether by implication, estoppel or otherwise, any title or ownership of, or exclusive use-rights to, any intellectual property or other right and any goodwill associated therewith.

 

Digital Millennium Copyright Act (“DMCA”) Notice

If you believe any material available via the Sites infringes a copyright you own or control, you may file a notification of such infringement with our Designated Agent as set forth below.

In-Shape Health Clubs, LLC
Attn: Website Administrator

6 S. El Dorado Street, 6th Floor
Stockton, CA 95202

email: webadmin@inshape.com

 

Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

 

If a notice of copyright infringement has been filed against material posted by you on the Sites, you may make a counter-notification with our Designated Agent listed above, provided that such counter-notification complies with the requirements of 17 U.S.C. §512(g)(3). If ISHC receives a valid counter-notification, it may reinstate the removed or disabled material in accordance with the DMCA.

 

In accordance with the DMCA and other applicable law, ISHC has also adopted a policy of terminating, in appropriate circumstances and in our sole discretion, users who are deemed to be repeat infringers. ISHC may also, in its sole discretion, limit access to the Sites and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

 

Trademarks

ISHC and the ISHC logo are registered trademarks of ISHC. All other ISHC trademarks, service marks, domain names, logos, company names and indicia of origin referred to on the Sites are either trademarks, service marks, domain names, logos, company names or indicia of origin or are otherwise the property of ISHC or its affiliates or licensors. Other product or company names referred to on the Sites may be trademarks of their respective owners. You may not use any trademark, service mark, domain name, logo, company name, trade name or indicia of origin of ISHC or any third party without permission from the owner of the applicable trademark, service mark, domain name, logo, company name, trade name or indicia of origin. You may contact ISHC by writing to In-Shape Health Clubs, LLC, Attn: Website Administrator, 6 S. El Dorado Street, 6th Floor, Stockton, CA 95202, to request written permission to use trademarks, indicia of origin and materials on the Sites for purposes other than stated in these Terms of Use or for all other questions relating to the Sites.  All rights not expressly granted are reserved.

 

Use Restrictions

The Sites may include areas in which registered users may create or post messages, materials, information, music, photos, videos, applications, links or other items or materials ("Posted Content"). You hereby agree not to post, upload, transmit, distribute, store, create or otherwise publish through the Sites any of the following:

 

  • Unless specifically requested by ISHC, any “sensitive” personally identifiable information about yourself or another person (including, but not limited to, information that relates to health or medical conditions, social security numbers, credit cards, bank accounts or other financial information, other information concerning trade union membership, sex life, political opinions, criminal charges or convictions, religious beliefs, racial or ethnic origin, or other sensitive matters);
  • Posted Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, otherwise objectionable or which threatens our relationships with our employees, members, guests, partners, customers or suppliers;
  • Posted Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
  • Posted Content that impersonates any person or entity or otherwise misrepresents your identity or affiliation with another person or entity;
  • Spam, direct marketing communications or any unsolicited advertising, promotional materials or other forms of solicitation or commercial content;
  • Posted Content that constitutes, encourages or provides instructions for a criminal offense, violates the rights of any party or that creates liability or violates any applicable local, state, national or international law;
  • Viruses, spyware, Trojan horses, Easter eggs or any other harmful, disruptive or destructive files; and
  • Posted Content that violates these Terms of Use or, in the sole judgment of ISHC, is objectionable, restricts or inhibits any other person from using or enjoying the Sites or which damages the image or rights of ISHC, other users or third parties.

 

You further agree not to (i) use technology or other means to access ISHC or the Sites or Proprietary Materials that is not authorized by ISHC; (ii) use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," to access ISHC or the Sites or Proprietary Materials; (iii) attempt to gain unauthorized access to ISHC computer network or user accounts; or (iv) attempt to damage, disable, overburden, or impair ISHC servers or networks.

 

ISHC does not control, take responsibility for or assume liability for any Posted Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, nor is ISHC liable for any user conduct or any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Interactive areas are generally designed as open and public community areas for connecting and sharing with other people. When you participate in these areas, you understand that certain information and content you choose to post may be displayed publicly. You are solely responsible for your use of the Sites and agree to use the interactive areas at your own risk.

 

Enforcement of these Terms of Use, however, is solely in our discretion and absence of enforcement in some instances does not constitute a waiver of our right to enforce the Terms of Use in other instances. In addition, these Terms of Use do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Sites will not contain any content that is prohibited by these Terms of Use. Although ISHC has no obligation to screen, edit or monitor any of the Posted Content posted on the Sites, ISHC reserves the right, and has absolute discretion, to remove, screen or edit any Posted Content on the Sites at any time and for any reason without notice. You are solely responsible for creating backup copies and replacing any Posted Content you post or store on the Sites at your sole cost and expense.

If you are viewing the Sites on a public computer or are otherwise using a computer to which multiple people have potential access, be sure to follow all relevant instructions to ensure you are sufficiently disconnected and logged off the Sites and the computer system you are using to prevent unauthorized Posted Content.

 

License to Posted Content

You represent and warrant that your Posted Content is not subject to any confidentiality obligations and that you own and control all of the rights to the Posted Content, have the lawful right to distribute and produce such Posted Content, or otherwise have the right to grant the rights to ISHC that you grant herein. ISHC claims no ownership or control over any Posted Content, except as otherwise provided herein, on the Sites or in a separate agreement. However, by submitting or posting Posted Content on the Sites, you grant ISHC and its designees a perpetual, irrevocable, non-exclusive, fully-paid up and royalty free license to use, sell, reproduce, prepare derivative works, combine with other works, alter, translate, distribute copies, display, perform, publish, license or sub-license the Posted Content and your name and likeness provided in connection with such use of your Posted Content. By posting Posted Content, you hereby release ISHC and its agents and employees from any claims that such use, as authorized above, violates any of your rights and you understand that you will not be entitled to any compensation for any use of your Posted Content.

 

Submissions of Ideas by Users

Separate and apart from the Posted Content you provide, you can submit questions, comments, feedback, suggestions, ideas, plans, notes, drawings, original or creative materials or other information about ISHC, our Sites and our products (collectively, "Your Ideas"). Your Ideas, whether posted to the Sites or provided to ISHC by email or otherwise are entirely voluntary, non-confidential, gratuitous and non-committal. ISHC shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of Your Ideas for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Please do not send us Your Ideas if you expect to be paid or want to continue to own or claim rights in them. We may have already had the same or similar idea and we do not want disputes.

 

Creating Links

You are granted a limited, non-exclusive right to create text hyperlinks to the Sites for noncommercial purposes, provided such links do not portray ISHC in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any obscene, pornographic, sexually explicit or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. In addition, you may not use ISHC' logo or other proprietary graphics to link to our Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any ISHC trademark, logo or other proprietary information, including the images found at the Sites, the content of any text or the layout/design of any page or form contained on a page on the Sites without our express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of ISHC or any third party. ISHC makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of websites linking to the Sites. Such sites are not under the control of ISHC and ISHC is not responsible for the content of any linked site or any link contained in a linked site, or any review, changes or updates to such sites.

 

Third Party Information, Products, Services and Content

ISHC may provide third party content on the Sites (including embedded content) and links to web pages and content of third parties, including advertisements and promotions (collectively, “Third Party Content”) as a service to those interested in this information. We do not control, endorse or adopt any Third Party Content, including that the inclusion of any link does not imply affiliation, endorsement or adoption by ISHC of any site or any information contained therein, and can make no guarantee as to its accuracy or completeness. You acknowledge and agree that ISHC is not responsible or liable in any manner for any Third Party Content and undertakes no responsibility to update or review such Third Party Content. You agree to use such Third Party Content contained therein at your own risk. When you visit other sites via Third Party Content, or participate in promotions or business dealings with third parties, you should understand that our terms and policies no longer govern, and that the terms and policies of those third party sites will now apply. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from our Sites.

 

Disclaimer

Use of the Sites and information contained therein is at your own risk. You agree not to use any health information provided on the Sites to diagnose, treat, cure or prevent any medical condition. Any information provided through the Sites is not a substitute for professional medical advice, diagnosis or treatment, should not be construed as the provision of advice or recommendations, and should not be relied upon as the basis for any decision or action, including the diagnosis or treatment of any medical condition. We shall not be held responsible for the accuracy, completeness or reliability of any health information available through the Sites, and you are responsible for evaluating for yourself the accuracy, completeness and usefulness of such information. You should always seek the advice of your physician or other qualified health professional about any medical or health condition.

 

IN ADDITION, YOU EXPRESSLY AGREE THAT, OTHER THAN TO THE EXTENT THAT ANY WARRANTY IS INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW, (A) THE SITES AND ALL MATERIALS, RESOURCES, INFORMATION, SOFTWARE, THIRD PARTY RESOURCES, PRODUCTS AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITES (COLLECTIVELY, TOGETHER WITH THE SITES, THE “ONLINE SERVICES”) ARE PROVIDED “AS IS,” “WHERE IS” AND “AS AVAILABLE” FOR YOUR USE. THE ONLINE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE; AND (B) NONE OF ISHC, ITS SUBSIDIARIES OR ITS AFFILIATES, NOR THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, OWNERS, MEMBERS, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS OR SERVICE PROVIDERS, NOR THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, “ISHC PARTIES”), MAKE ANY WARRANTY THAT THE CONTENT OF THE SITES IS ACCURATE, RELIABLE OR CORRECT, THAT THE SITES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, THAT ACCESS THERETO WILL BE UNINTERRUPTED, THAT THE SITES ARE SECURE, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE SITES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT YOU WILL ACHIEVE SUCCESSFUL RESULTS FROM FOLLOWING ANY INSTRUCTIONS, DIRECTIONS OR RECOMMENDATIONS AVAILABLE THROUGH THE SITES. ALL DISCLAIMERS OF ANY KIND IN THESE TERMS OF USE (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE) ARE MADE ON BEHALF OF BOTH ISHC AND THE OTHER ISHC PARTIES.  YOU EXPRESSLY AGREE THAT THE FOREGOING DISCLAIMER OF WARRANTIES IS INTENDED TO BE AS BROAD AND INCLUSIVE AS IS PERMITTED BY CALIFORNIA LAW AND THAT IF ANY PORTION THEREOF IS HELD INVALID, YOU AGREE THAT THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL FORCE AND EFFECT.

 

Limitation of Liability

UNDER NO CIRCUMSTANCES SHALL ANY ISHC PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND THAT ARISE OUT OF OR ARE RELATED TO THESE TERMS OF USE, INCLUDING DAMAGES THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SITES OR RESOURCES, PRODUCTS, THIRD PARTY RESOURCES OR INFORMATION MADE AVAILABLE THROUGH THE SITES OR ANY VIRUS THAT MAY BE TRANSMITTED IN CONNECTION THEREWITH. THE FOREGOING LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE.

 

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE SECTION TITLED “PURCHASE TRANSACTIONS; SALES TERMS,” YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITES OR RESOURCES, PRODUCTS, THIRD PARTY RESOURCES OR INFORMATION MADE AVAILABLE THROUGH THE SITES IS TO STOP USING THE SITES. THE MAXIMUM LIABILITY OF ALL ISHC PARTIES, IN THE AGGREGATE, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THE OFFERING OR THESE TERMS OF USE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS (EVEN IF WE HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE), SHALL BE THE GREATER OF (A) THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO ISHC SOLELY TO USE THE SITES; AND (B) TEN U.S. DOLLARS ($10).

 

ALL LIMITATIONS OF LIABILITY OF ANY KIND IN THESE TERMS OF USE (INCLUDING IN THIS SECTION AND ELSEWHERE IN THESE TERMS OF USE) ARE MADE ON BEHALF OF BOTH ISHC AND THE OTHER ISHC PARTIES.

 

IF ANY LAW THAT APPLIES TO YOU DOES NOT ALLOW ANY EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH ABOVE, TO THE EXTENT REQUIRED BY SUCH APPLICABLE LAW, THE APPLICABLE EXCLUSION OR LIMITATION SHALL NOT APPLY TO YOU (AND YOU MAY HAVE CERTAIN ADDITIONAL RIGHTS) AND OUR LIABILITY TO YOU ARISING OUT OF OR RELATING TO THE OFFERING OR THESE TERMS OF USE SHALL BE LIMITED TO THE EXTENT PERMITTED BY SUCH APPLICABLE LAW. IN PARTICULAR, YOU EXPRESSLY AGREE THAT THE FOREGOING LIMITATION OF LIABILITY PROVISIONS ARE INTENDED TO BE AS BROAD AND INCLUSIVE AS IS PERMITTED BY THE LAW OF CALIFORNIA AND THAT IF ANY PORTION THEREOF IS HELD INVALID, YOU AGREE THAT THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL FORCE AND EFFECT.

 

Arbitration of Disputes

EXCEPT FOR DISPUTES THAT QUALIFY FOR SMALL CLAIMS COURT, ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SITES (EACH, A “DISPUTE”), WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND YOU AGREE THAT, WITH RESPECT TO ANY DISPUTE, (A) ISHC AND YOU ARE EACH WAIVING THE RIGHT TO A COURT ACTION AND A TRIAL BY A JURY; (B) ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; (C) CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED; AND (D) YOU ARE GIVING UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (https://www.adr.org/sites/default/files/Consumer%20Rules.pdf), as amended by these Terms of Use. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator. The arbitrator’s decision will follow the terms of these Terms of Use and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms of Use, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms of Use will preclude you from bringing issues to the attention of federal, state or local agencies and, if applicable law allows, they can seek relief against us for you.

 

Indemnification

You agree to defend, indemnify and hold harmless ISHC, its independent contractors, service providers and consultants, and their respective directors, officers, employees, agents, parents, subsidiaries, and other affiliates, from and against any claims, suits, damages, costs, liabilities, penalties, and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to (a) your use of the Sites; (b) any Posted Content or Your Ideas you provide; (c) your violation of these Terms of Use; (d) your violation of any rights of any third party; or (e) your conduct in connection with the Sites. ISHC reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.

 

Modifications to the Sites

ISHC reserves the right to modify or discontinue, temporarily or permanently, the Sites or any features or portions thereof without prior notice. You agree that ISHC will not be liable for any modification, suspension or discontinuance of the Sites or any part thereof.

 

Jurisdiction and Governing Laws

These Terms of Use, your use of the Sites, all transactions through the Sites and any claims arising out of or relating to the Sites (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory), shall be governed by the laws of the United States (including the Federal Arbitration Act) and the State of California without regard to California’s conflict of law provisions that would require the application of the laws of another jurisdiction.

 

Termination

Notwithstanding any of these Terms of Use, ISHC reserves the right, without notice and in its sole discretion, to terminate your license to use the Sites and to block or prevent your future access to and use of the Sites. ISHC’s failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.

 

Miscellaneous

These Terms of Use constitutes the entire agreement between ISHC and you with respect to the Sites and supersedes all prior or contemporaneous communications and proposals between us with respect to the Sites. Nothing in these Terms of Use amends or modifies, or has any effect upon, the terms and conditions of any separate agreement that you may have entered into with ISHC. Section titles in these Terms of Use are for convenience and do not define, limit or extend any provision of these Terms of Use. These Terms of Use do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and ISHC. You may not assign, transfer or sublicense any or all of your rights or obligations under these Terms of Use without our express prior written consent. We may assign, transfer or sublicense any or all of our rights or obligations under these Terms of Use without restriction. No waiver by either party of any breach or default under these Terms of Use will be deemed to be a waiver of any preceding or subsequent breach or default. ISHC will not be responsible for any failure to fulfill any obligation due to any cause beyond its control.

 

Severability

If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

 

California Notice

Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: The provider of the Sites is In-Shape Health Clubs, LLC, 6 S. El Dorado Street, 6th Floor, Stockton, California 95202. To file a complaint regarding the Sites or to receive further information regarding use of the Sites, send a letter to the above address or contact ISHC via e-mail at webadmin@inshape.com (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N-112, Sacramento, CA 95834 or by telephone at 800.952.5210.

 

Contact Us

Please feel free to contact us with any comments, questions or suggestions you might have regarding the information described in the Sites. You may contact us at: In-Shape Health Clubs, LLC, Attn: Website Administrator, 6 S. El Dorado Street, 6th Floor, Stockton, California 95202, or via e-mail at webadmin@inshape.com.

 

Apple-Specific Terms

In addition to the foregoing terms and conditions, and notwithstanding anything to the contrary in these Terms of Use, the following provisions in this section apply with respect to your use of any version of the App compatible with the iOS operating system of Apple Inc. (“Apple”). Apple is not a party to these Terms of Use and does not own and is not responsible for the App or the content thereof. Apple is not providing any warranty for the App except, if applicable, to refund the purchase price for it. Apple is not responsible for maintenance or other support services for the App and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses with respect to the App, including any third-party product liability claims, claims that the App fails to conform to any applicable legal or regulatory requirement, claims arising under consumer protection or similar legislation, and claims with respect to intellectual property infringement. Any inquiries or complaints relating to the App, including those pertaining to intellectual property rights, must be directed to ISHC in accordance with the “Contact Information; Notices” section above. The license you have been granted herein is limited to a non-transferable license to use the App on an Apple-branded product that runs Apple’s iOS operating system and is owned or controlled by you, and as permitted by the Usage Rules set forth in Apple’s App Store Terms of Service. In addition, you must comply with the terms of any third-party agreement applicable to you when using the App, such as your wireless data service agreement. Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms of Use and, upon your acceptance of the terms and conditions of these Terms of Use, 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; notwithstanding the foregoing, ISHC’s right to enter into, rescind or terminate any variation, waiver or settlement under these Terms of Use is not subject to the consent of any third party.

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