- Exercise and body scanning machines, whether manufactured by EGYM or a third party, that incorporate the EGYM training software operated by EGYM (collectively, the “Equipment”);
- EGYM websites operated by EGYM, including www.egym.com and www.fitness-finder.com (“Sites”);
- EGYM software applications operated by EGYM , including the EGYM Fitness App available for iOS and Android (“Consumer Apps”);
- Fitness facility branded software applications operated by EGYM (“Branded Apps”);
- Fitness facility software applications provided to fitness facility employees, which are operated by EGYM, including the EGYM Trainer App (“Trainer Apps”); and
(the Sites, Consumer Apps, Branded Apps, and Trainer Apps, and all other services offered by EGYM are collectively the “Services” and all the text, data, information, software, graphics, videos, photographs and other materials (all of which are referred to as “Materials”) that we and our affiliates may make available to you through the Equipment and the Services). By registering an account or by visiting, browsing, or using the Services in any way, you accept and agree to be bound by these Terms, which forms a binding agreement between you and EGYM.
Please note that “fitness facility” as used herein includes gyms, physical therapy offices, hotels, senior facilities, and any other third party facility that provides the Equipment, Branded Apps, and Trainer Apps.
ARBITRATION NOTICE: Except for certain types of disputes described in the Arbitration section below (Section 19) and except if you opt-out, you agree that disputes between you and EGYM will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit, class-wide arbitration, or a jury trial.
READ THESE TERMS CAREFULLY BEFORE USING THE EQUIPMENT OR USING ANY OF THE SERVICES. USING THE EQUIPMENT AND SERVICES IN ANY WAY INDICATES THAT YOU HAVE BOTH READ AND ACCEPTED THESE TERMS. YOU CANNOT USE THE EQUIPMENT OR ANY OTHER SERVICES IF YOU DO NOT ACCEPT THESE TERMS.
1. HEALTH AND SAFETY; ACKNOWLEDGEMENT AND RELEASE
You hereby acknowledge and agree that the Equipment and Services include features that promote physical exercise, sport, and other activities that may cause injury. Any recommended workout plans and exercises, even if they are tailored to individual users, should not be misconstrued as medical advice, diagnoses or treatment. You should consult your physician or other health care practitioner before engaging in any exercise program or other physical activity, and you should immediately discontinue exercise in cases where it causes pain or severe discomfort.
You certify that: you are in good health and sufficient physical condition to properly participate in fitness activities and to use the Services; that you are knowledgeable about the proper use of any equipment that you will use and the rules of any activities that you will participate in; and that you will carefully read the operating instructions for any equipment prior to use and will operate such equipment in strict accordance with instructions.
You understand that there is an inherent risk of injury when choosing to participate in any physical exercise, sport or wellness activities. You acknowledge that your participation is voluntary in all respects, and you hereby assume all risks of injury, illness, death, loss, property damage and/or any other personal or financial injury to you or to others (collectively, “Injury”) that may result from your use of the Equipment or Services, however caused, even if caused in whole or in part by the action, inaction or negligence of EGYM Inc., its parent, subsidiaries, or affiliates (the “Released Parties”), to the fullest extent allowed by law.
On behalf of yourself and anyone entitled to act on your behalf (including your heirs, estate, insurers, successors and assigns), you hereby agree to forever release and discharge the Released Parties from any and all liabilities, claims, demands, or causes of action that you may hereafter have for any Injury in connection with the Services, however caused, even if caused in whole or in part by the action, inaction or negligence of the Released Parties, to the fullest extent allowed by law.
You agree not to sue or bring any legal action or proceeding against any of the Released Parties for or on account of any Injury. You agree to indemnify, hold harmless and defend the Released Parties from any and all claims, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees) relating to or resulting from any Injury arising out of, connected with, or in any way associated with the Equipment or Services.
2. LIMITED LICENSE TO USE
We grant you a limited non-exclusive, non-sublicensable, and non-transferable license to access and make personal, non-commercial use of the Equipment and Services, subject to and conditioned upon your compliance with all of the terms and conditions of these Terms (the “Permitted Purposes”). By using the Equipment and Services, you agree that you are at least 16 years of age. If you are 16 or older, but younger than 18 or the age of legal majority in your jurisdiction of residence (a “Minor”), you must have the consent of your parent or legal guardian and receive your parent’s or legal guardian’s permission to use the Equipment and Services and agree to these Terms. If you are a parent or legal guardian of a Minor, you agree that you are solely responsible for monitoring and supervising such Minor’s use of the Equipment and Services, and to bind the Minor to these Terms and to fully indemnify and hold us harmless if the Minor breaches any of these Terms.
This license does not include: any right to use, modify, distribute or store any content other than for the foregoing purposes; any right to resell or use the Services or the contents of any part of the Services for commercial purposes; any derivative use of the Services and/or its respective contents; any downloading or copying of account information for the benefit of a third party not authorized by us; any use of data mining, robots, or similar data gathering, automatic processing and extraction services; any right to decompile, reverse engineer, or disassemble the Services or to take any measures to interfere with or damage the Services. The Services and/or any portion thereof may not be reproduced, duplicated, copied, sold, resold, licensed, rented, visited, or otherwise exploited for any commercial purpose without our express written consent in advance. All rights not expressly granted by EGYM herein are reserved.
The license is effective until terminated by you or us. Your rights under these Terms will terminate automatically without notice from us if you fail to comply with any provision of these Terms and as otherwise set forth in these Terms . Upon termination of these Terms, you shall cease all use of the Equipment and Services and destroy all copies, full or partial, of the Applications or Materials in your possession.
We reserve the right to modify or replace these Terms and/or to change, suspend or discontinue the Services at any time in our sole discretion. We may also impose limits on certain features and Services or restrict your access to parts or all of the Services without notice or liability. We may provide notice of changes to these Terms or other matters by posting updated text on the EGYM Sites or through the Services or other appropriate means of electronic communication (including in an email that we will send to the address that you provided during account registration), and your continued use of the Services following the posting of any change or modification to these Terms will constitute your acceptance of the modified Terms. Your use will be subject to the Terms in effect at the time of your use. It is your responsibility to review these Terms periodically for changes.
If you object to any such modifications, replacements, or restrictions, your sole recourse shall be to cease all use of the Services. Additionally, these Terms may be superseded by expressly-designated legal notices or terms located on particular pages of the EGYM Sites or associated with specific Services. These expressly-designated legal notices or terms are incorporated into these Terms and supersede the provision(s) of these Terms that are designated as being superseded.
4. EGYM USER ACCOUNTS
To register for the Services, the user needs a valid email address and a password of the user’s own choice and will be required to enter profile information such as age and gender. For the use of the Equipment, the user needs a personalized RFID chip, which should be provided by the user’s fitness facility. Registration with EGYM is carried out by activating the user profile by EGYM. Upon registration, the user agrees to provide true and complete information and to keep it up-to-date during while the account is open. The user’s account is personal and non-transferable. The free EGYM membership and the EGYM user profile can be terminated at any time without notice in writing. Additionally, the user can delete his or her EGYM account by using the settings on the EGYM Sites.
You acknowledge and agree that EGYM is not a party to any oral or written agreement between you and any fitness facility, personal trainer, or other third party, for services or otherwise.
5. MOBILE APPLICATIONS
To use the Consumer Apps, Branded Apps, and Trainer Apps (collectively,“Applications”) you must have a mobile device that is compatible with the mobile service. We do not warrant that the Applications will be compatible with your mobile device. We hereby grant to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Applications for one registered account on one mobile device owned or leased solely by you, for your personal use. You may not: (i) modify, disassemble, decompile or reverse engineer the Applications, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Applications to any third-party or use the Applications to provide time sharing or similar services for any third-party; (iii) make any copies of the Applications; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Applications, features that prevent or restrict use or copying of any content accessible through the Applications, or features that enforce limitations on use of the Applications; or (v) delete the copyright and other proprietary rights notices on the Applications. You acknowledge that we may from time to time issue upgraded versions of the Applications, and may automatically electronically upgrade the version of the Applications that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that these Terms will apply to all such upgrades. The foregoing license grant is not a sale of the Applications or any copy thereof, and we and our third-party licensors or suppliers retain all right, title, and interest in and to the Applications (and any copy of the Applications). Standard carrier data charges may apply to your use of the Applications.
The following additional terms and conditions apply with respect to any Applications that we provide to you designed for use on an Apple iOS-powered mobile device (an “iOS Version”):
- You acknowledge that these Terms are between you and EGYM only, and not with Apple, Inc. (“Apple”).
- Your use of our iOS Version must comply with Apple’s then-current App Store Terms of Service.
- We, and not Apple, are solely responsible for our iOS Version and the Services and content available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS Version. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS Version.
- You agree that we, and not Apple, are responsible for addressing any claims by you or any third-party relating to our iOS Version or your possession and/or use of our iOS Version, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS Version fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by these Terms and any law applicable to us as provider of the iOS Version.
- You agree that we, and not Apple, are responsible, to the extent required by these Terms, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS Version or your possession and use of our iOS Version.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- You agree to comply with all applicable third-party terms of agreement when using our iOS Version (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS Version).
- The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to these Terms as they relate to your license of our iOS Version. Upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as they relate to your license of the iOS Version as a third-party beneficiary thereof.
The following additional terms and conditions apply with respect to any Applications that we provide to you designed for use on an Android-powered mobile device (an “Android Version”):
- You acknowledge that these Terms are between you and EGYM only, and not with Google, Inc. (“Google”).
- Your use of our Android Version must comply with Google’s then-current Android Market Terms of Service.
- Google is only a provider of the Android Market where you obtained the Android Version. We, and not Google, are solely responsible for our Android Version and the Services and content available thereon. Google has no obligation or liability to you with respect to our Android Version or these Terms.
- You acknowledge and agree that Google is a third-party beneficiary to the Terms as they relate to our Android Version.
6. PERSONAL TRAINERS
Certain users of the Services may be offered the opportunity to register for a “Personal Trainer” account and use of the “Personal Trainer” mobile application, which EGYM will approve in EGYM’s sole discretion. EGYM reserves the right to make registration as a Personal Trainer dependent on evidence of qualifications and reliability, but has no obligation to confirm the credentials of anyone registering for a Personal Trainer account.
A standard EGYM user account is required to register as a personal trainer (with the same log-in details for use with the “Personal Trainer” mobile application). If the “Personal Trainer” mobile application is used for commercial purposes or by a fitness facility, it must be activated by EGYM.
7. PROFILE SHARING; TRAINING DATA
Certain Services may permit you to allow your profile (including related data, such as training results) to be accessed and commented on by other users of the Services. By default, any other users of the Services from the fitness facility with which your profile is linked will be able to see your profile and comment on your exercise activity. In addition, by default, information in your profile will be visible to the fitness facility with which he or she is registered. You may also choose to share your exercise data with personal trainers with whom you are training.
You may also have the ability to publish your profile information (e.g. training results) or to share it with friends and third parties in social media (e.g. Facebook, Twitter etc.) by creating a link for your EGYM profile with your social media account. You are solely responsible for this transfer of your data, and perform such transfer your own risk. EGYM is not responsible for the results of any third party’s handling of your data.
EGYM is not obligated to back up, store, or archive your training or other data during or after the provision of the Services. The user is responsible for backing up his or her data in such a way that it can be restored with reasonable effort by the user.
8. INTERACTIONS WITH THIRD PARTIES; DISPUTES AMONG USERS
You understand that deciding whether to use the services of a fitness facility, personal trainer, or other service provider, is your personal decision for which you alone are responsible. You understand that we do not and cannot make representations as to the suitability of any individual or business with which you may decide to interact in connection with your use of the Services and/or the accuracy or suitability of any advice, information, or recommendations made by any individual or organization (including, without limitation, any exercise plans or recommendations offered by trainers).
Your interactions with individuals and/or organizations found on or through your use of the Services, including the performance of any services by such parties and any other terms, conditions, warranties or representations associated with such transactions or dealings, are solely between you and such individual or organization. You should take reasonable precautions and make whatever investigation or inquiries you deem necessary or appropriate before proceeding with any online or offline transaction with any third party.
IF THERE IS A DISPUTE BETWEEN USERS OF THE SERVICES, OR BETWEEN ANY USER OF THE SERVICES AND ANY THIRD PARTY, YOU ACKNOWLEDGE AND AGREE THAT WE ARE UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN YOU AND ANY THIRD PARTY, YOU HEREBY RELEASE US, OUR OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES AND/OR THE SITES OR ANY SERVICE PROVIDED THEREUNDER.
9. ELECTRONIC COMMUNICATIONS
By using any of our Services, you consent to receiving electronic communications from us, which may include emails and text messages. These electronic communications may include notices about transactional information. applicable fees and charges, and other information concerning or related to the Services. These electronic communications are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
- How we collect information;
- How we use information; and
- How we share information.
11. LINKS TO THIRD-PARTY WEBSITES
EGYM sometimes provide links from the Services to third-party websites. If you use these links, you will leave our Services. We are not obligated to review any third-party websites linked to from the Services, we do not control any of the third-party websites, and we are not responsible for any of the third-party websites (or the products, services, or content available through any of them). Thus, we do not endorse or make any representations about such third-party websites, any information, software, products, services, or materials found there or any results that may be obtained from using them. If you decide to access any of the third-party websites linked to from the Services, you do this entirely at your own risk and you must follow the privacy policies and terms and conditions for those third-party websites. Certain areas of the Services may allow you to interact and/or conduct transactions with one or more third-party websites or services, and, if applicable, allow you to configure your privacy settings in that third-party account to permit your activities on the Services to be shared with your contacts in your third-party site account.
12. USER CONTENT
Certain features of the Services may allow you to post information, text, photographs, videos, audio clips, comments, links, graphics, or other materials, or a combination of any or all of the aforementioned (collectively "User Content"). All User Content added, created, uploaded, submitted, distributed, or posted to the Services by you is your responsibility. You acknowledge that that all such User Content is considered both non-confidential and non-proprietary. You may only post User Content that you created or which the owner of the User Content has given you permission to post. If User Content depicts or mentions any person other than yourself, you must have permission from that person and, if that person is a minor, permission from that person's parent or legal guardian, before you post the User Content. You may be required to provide proof of such permission to us.
You also represent and warrant that (a) you own all the rights to the User Content or are authorized to use and distribute the User Content to us and other users and to grant the licenses set forth above, (b) your User Content and exercise of the licensed rights does not and will not violate or infringe any copyright, trademark, right of publicity, right of privacy, contractual rights, or any other intellectual property, proprietary or other third-party right or violate any law, rule or regulation, (c) all User Content provided by you is accurate, complete, up-to-date, and not misleading, (d) your User Content does not contain any viruses, worms, spyware, adware, or other potentially damaging programs or files, and (e) your User Content does not violate any law (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination, or false advertising).
Once you submit or post User Content to the Services, we do not need to give you any further right to inspect or approve any use of such User Content or to compensate you for any such use. We own all right, title, and interest in any compilation, collective work, or other derivative work created by us using or incorporating User Content posted to the Services.
You are solely responsible for anything you may post on the Services and the consequences of posting anything on the Services. All information, ideas, suggestions, and other communications you submit to us, including, but not limited to, User Content posted on the Services and communications sent via e-mail, will be on a non-confidential basis. We will be free to reproduce, use, disclose, and distribute such communications without limitation or obligation.
We may, but are not obligated to, pre-screen User Content or monitor any area of the Services through which User Content may be submitted. We are not required to host, display, or distribute any User Content on or through the Services and may remove at any time or refuse any User Content for any reason. You understand that when using the Services you will be exposed to User Content from a variety of sources and that we are not responsible for the accuracy, usefulness, reliability or intellectual property rights of or relating to such User Content. You further understand and acknowledge that you may be exposed to User Content that are inaccurate, offensive, defamatory, indecent or objectionable and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. We are not responsible for any loss, theft, or damage of any kind to any User Content. Further, you agree that we may freely disclose your User Content to any third party absent any obligation of confidence on the part of the recipient.
13. UNAUTHORIZED ACTIVITIES
We authorize your use of the Equipment and Services only for Permitted Purposes. Any other use of the Equipment and Services beyond the Permitted Purposes is prohibited and, therefore, constitutes unauthorized use of the Equipment and Services.
For example, you are not authorized to use the Equipment or Services in any of the following ways:
- In a manner that modifies, publicly displays, publicly performs, reproduces or distributes any of the Services for any commercial purpose that competes with our Services in any way;
- In a manner that violates any local, state, national, foreign, or international statute, regulation, rule, order, treaty, or other law;
- To stalk, harass, threaten, or otherwise violate the legal rights (such as rights of privacy and publicity) another individual;
- To impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity;
- To interfere with or disrupt the Equipment or Services or servers or networks connected to the Equipment or Services;
- To use any data mining, robots, or similar data gathering or extraction methods in connection with the Services; or
- Attempt to gain unauthorized access to any portion of the Services or any other accounts, computer systems, or networks connected to the Services, whether through hacking, password mining, or any other means.
14. EGYM PROPRIETARY RIGHTS
EGYM and/or its licensors retain all right, title, and interest in and to all trademarks, copyrights, patent rights, trade secrets, know-how, and all other intellectual property rights relating to the Equipment and Services. Without limiting the foregoing, EGYM® and all other trademarks, logos, and service marks displayed on the Equipment and Services are registered and unregistered trademarks of ours and/or third parties under license (collectively, the "Trademarks"); you may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify these Trademarks in any way. Further, all Materials are our sole property or the property of our licensors. All rights not expressly granted herein are reserved. Except as otherwise required or limited by applicable law, any reproduction, distribution, modification, retransmission, or publication of any copyrighted material is strictly prohibited without the express written consent of EGYM or the applicable copyright owner.
15. COPYRIGHT INFRINGEMENT / DMCA POLICY
If you believe any Materials or User Content on the Services infringes a copyright, you may request removal of such Materials or User Content (or access thereto) from the Services by contacting our Copyright Agent (designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. §512(c)(2)) at the address set forth below and providing the following information:
- Your name, address, telephone number, and e-mail address.
- Identification of the copyrighted work that you believe to be infringed. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
- A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
- A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf.
- A signature or the electronic equivalent from the copyright holder or authorized representative.
Our copyright agent for notice of claims of copyright infringement can be reached as follows:
EGYM Legal Department
2530 Frontier Avenue
Boulder, CO 80301
In an effort to protect the rights of copyright owners, it is our policy to terminate the account or accounts of suspected infringers on the Services in appropriate circumstances and at our sole discretion.
16. DISCLAIMER OF WARRANTIES
YOUR USE OF THE EQUIPMENT AND SERVICES IS AT YOUR SOLE RISK. THE EQUIPMENT AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WE DO NOT WARRANT THAT THE SERVICES AND/ OR OUR SERVERS, OR COMMUNICATIONS SENT FROM US OR THROUGH THE SERVICES, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE (ON BEHALF OF OURSELVES AND OUR LICENSORS) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
WE MAKE NO WARRANTY THAT (A) THE EQUIPMENT OR SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES, THE SERVERS THAT MAKE THE SERVICES AVAILABLE, WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THE ACCURACY, LEGALITY OR QUALITY OF ANY SERVICES, MATERIAL, USER CONTENT, OR OTHER INFORMATION ACCESSED OR OBTAINED BY YOU THROUGH THE SERVICES, AND/OR (D) ANY DEFECTS OR ERRORS OF THE SERVICES WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
You agree to indemnify and hold harmless us and our parent, affiliates, subsidiaries, and each of our and their respective representatives, agents, related entities, employees, contractors, directors, and suppliers from any claim, liability, loss, expense, judgment, settlement, or demand, including, but not limited to, reasonable attorneys' fees, incurred due to, arising out of or relating to your User Content, your use of or access to the Equipment or Services, your violation of these Terms , or your violation of any rights of another person or entity. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnifications by you, in which event you shall assist and cooperate with us in asserting any available defenses.
We have no special relationship with or fiduciary duty to you. You acknowledge that we have no duty to take any action regarding: (i) which users gain access to the Services; (ii) what Material you access via the Services; or (iii) how you may interpret or use the Material. You release us from all liability for you having acquired or not acquired Material through the Services.
18. LIMITATION OF LIABILITY
YOU ARE USING THE EQUIPMENT, SERVICES, AND MATERIALS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW WE SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE EQUIPMENT, SERVICES, OR YOUR DISPLAYING, COPYING, OR DOWNLOADING ANY MATERIALS TO OR FROM THE EQUIPMENT OR SERVICES. IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, REVENUE, PROFITS, COST OF SUBSTITUTE GOODS AND SERVICES, USE, OR OTHER ECONOMIC ADVANTAGE) HOWEVER ARISING, EVEN IF WE KNOW THERE IS A POSSIBILITY OF SUCH DAMAGE.
YOU ACKNOWLEDGE AND AGREE THAT WE DO NOT HAVE AN OBLIGATION TO CONDUCT BACKGROUND CHECKS ON ANY USER. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES, AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE THEREOF. YOU UNDERSTAND THAT WE DO NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH ANY PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICES, PARTICULARLY IF YOU MEET OFFLINE OR IN PERSON.
19. ARBITRATION AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS
OTHER THAN AS STATED IN THE “EXCEPTIONS” BELOW, YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND US (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH US, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS, YOUR USE OF THE EQUIPMENT OR SERVICES, AND/OR RIGHTS OF PRIVACY AND/OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY.
DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this paragraph will be null and void. This arbitration agreement will survive the termination of your relationship with us.
EXCEPTIONS: As limited exceptions to this Section 19: (i) you may seek to resolve a dispute in small claims court if it qualifies; (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our respective intellectual property rights; and (iii) you will retain the right to opt out of arbitration entirely and litigate any dispute if you provide us with written notice of your desire to do so within 30 days following the date you first agree to these Terms (you must use this address to opt out: EGYM, Inc., Attn: Arbitration Opt-Out, 2530 Frontier Avenue, Boulder, CO 80301 and you must include your name and address, the email address that you use for your EGYM account, and a clear statement that you want to opt out of this agreement to arbitrate).
20. CONTRACTING ENTITIES; GOVERNING LAW; AND JURISDICTION
All users of the Equipment and Services in the United States, Canada, and elsewhere in the world (other than as noted below) are contracting with EGYM Inc., unless otherwise specified in these Terms. Users that are residents of Europe (including those in the European Union and the United Kingdom) are contracting with EGYM GmbH. We may limit the availability of the Services, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time. Not all Equipment or Services may be available in all states, countries, or territories.
These Terms are governed by the laws of the State of New York, without regard to principles of conflicts of law. The Uniform Commercial Code, the Uniform Computer Information Transaction Act, and the United Nations Convention of Controls for International Sale of Goods shall not apply. Subject to the agreements in Section 19 above, exclusive jurisdiction for all disputes that are not required to be arbitrated will be the state and federal courts located in the County of New York, New York, and you and EGYM consent to the exclusive jurisdiction of those courts. You further agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Equipment and/or Services or these Terms will be forever barred if not filed within one (1) year after such claim or cause of action arose.
Any submissions by you to us (e.g., comments, questions, suggestions, materials – collectively, “Feedback”) through any communication whatsoever (e.g., call, fax, email) will be treated as both non-confidential and non-proprietary. You hereby assign all right, title, and interest in, and we are free to use, without any attribution or compensation to you, any ideas, know-how, concepts, techniques, or other intellectual property and proprietary rights contained in the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. You understand and agree that we are not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and you have no right to compel such use, display, reproduction, or distribution.
If any provision of these Terms is found by a court of competent jurisdiction to be unenforceable or invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the remaining provisions of these Terms remain in full force and effect.
These Terms constitute the entire agreement between you and us and govern your use of the Equipment and Services, superseding any prior agreements between you and us. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Your acceptance of these Terms and use of the Equipment or Services do not create a joint venture, partnership, employment, or agency relationship between you and us, and you have no authority to bind us in any respect. You may not assign, delegate or transfer your rights or obligations under these Terms and any such prohibited assignment transfer shall be null and void. We may freely assign, delegate and transfer the Terms and any of our rights and obligations. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content, or third-party software. Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. With respect to any releases set forth herein, if you are a California resident, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." All provisions of these Terms which by their nature should survive termination shall so survive termination, including, without limitation, the provisions regarding ownership and proprietary rights, disclaimer of warranties, release and waiver of liability, representations made by you, indemnities, limitations of liability, dispute resolution, choice of law and jurisdiction, and miscellaneous provisions shall survive any termination of these Terms.
24. CONTACT US
If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us by email at support@EGYM.com.
LAST UPDATED: August 31, 2020