FLEXPIT TERMS OF USE AGREEMENT

Last Updated: August 6th, 2018

Thank you for your interest in the Flexpit, LLC (“Flexpit”, “we”, “us”, “our”) fitness focused social media app –a mobile app where you can compete against other fitness enthusiasts and climb the ranks of exercise leaderboards as you improve your form and increase your strength. This Flexpit Terms of Use Agreement (“Agreement”) governs your use of the Flexpit mobile app (regardless of platform), the Flexpit website, and the Flexpit service (collectively, the “Flexpit Service”). You signify your assent to this Agreement by downloading any information or materials, using or accessing the Flexpit Service. Do not use or continue to access the Flexpit Service if you do not agree to be bound by this Agreement.  This Agreement was written in English.  To the extent this Agreement is translated into another language, this English version controls.

YOUR USE OF THE FLEXPIT SERVICE

You are responsible for your use of the Flexpit Service. You must have a parent or legal guardian review this Agreement with you, and agree to it on your behalf, if you are not of legal age to form a binding contract with us (age 18 in most states). You are prohibited from using the Flexpit Service if you are under the age of 13. If you have authorized or registered another person to use the Flexpit Service, including a minor, you are fully responsible for that person’s use of the Flexpit Service and the consequences of that person’s misuse of the Flexpit Service. The parent or legal guardian of a minor must affirmatively consent to such minor’s use of the Flexpit Service. You may only use the Flexpit Service in compliance with this Agreement and all applicable laws and regulations.  Your use of the Flexpit Service does not create any relationship with Flexpit or our officers, members, managers, employees, and agents that is confidential, fiduciary or special in nature.  No joint venture, partnership, employment or other relationship exists between you and Flexpit.

Flexpit reserves all rights not expressly granted in this Agreement.

YOUR FLEXPIT SERVICE ACCOUNT

You must have an account to use the Flexpit Service. When you create an account, you may have the option to select a unique username. Your username must be appropriate and not offensive. We reserve the right in our sole discretion to change and disable any account that does not meet our naming standards.

Your Flexpit Service account is personal to you and you may not share it or allow any other person to utilize your account. You may not use another person’s Flexpit Service account. You are responsible for all activities that occur under your account. You must immediately notify us if your registration information changes. You agree to provide accurate and complete information about yourself when using the Flexpit Service and creating an account.

The Flexpit Service may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access the Flexpit Service. If someone else has access to your computer or mobile device, the automatic login feature will allow that person to have access to your Flexpit Service account. You are responsible for all damages resulting from unauthorized access to the Flexpit Service from your account. You must immediately notify us if you learn of or have reason to suspect any unauthorized use of your account or any other breach of security.  You are responsible for safeguarding the confidentiality of any password or login information regarding your account.

You are solely responsible for your interactions and communications with other Flexpit users. You expressly acknowledge and agree that we are not responsible or liable for any user’s conduct or advice, including yours. We reserve the right to become involved in any dispute between Flexpit Service users, but you understand that we have no obligation to do so. Exercise common sense and use your best judgment when exercising, training, interacting with other users, including when you submit or post User Content or any personal information.

PRIVACY

We collect, store, and use data collected from you in accordance with our Privacy Notice, located at FLEXPIT.COM/PRIVACY. The terms and conditions of the Privacy Notice are incorporated into this Agreement.

USER CONTENT

You may have the opportunity to upload and display content, photos, videos, text, graphics, music, sounds, and other material or information on the Flexpit Service (“User Content”). User Content uploaded or provided through the Flexpit Service may be protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in User Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on User Content. Any unauthorized use of User Content, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. We will not be liable for User Content uploaded or posted to the Flexpit Service by you or any other user.

We do not claim ownership rights in User Content, but by uploading, transmitting, or posting User Content to the Flexpit Service, you hereby grant to us a non-exclusive, transferable, worldwide, irrevocable, royalty-free license to use, reproduce, modify, edit, adapt, publish, translate, display, host, store, distribute, sublicense, analyze, and create derivative works and compilations incorporating User Content as part of providing the Flexpit Service. You represent and warrant that you own or otherwise have the right and authority to grant us the rights and license herein to the User Content you post or upload to the Flexpit Service.

You are responsible for your User Content and for the consequences and liability related to or connected with User Content and your use of any User Content you access or obtain through the Flexpit Service. Do not upload or post User Content that violates, misappropriates, or infringes the rights of any third party. You are responsible for, and agree to pay, any and all royalties and/or fees owed by reason of the User Content you upload or post on the Flexpit Service.

We do not pre-screen or approve User Content but we reserve the right to remove User Content that we believe is harmful, dangerous, infringing, offensive, objectionable, or illegal at our sole discretion and without liability to you or any other person.

YOUR LICENSE TO USE THE FLEXPIT SERVICE

We grant to you a limited, non-exclusive, non-assignable, non-transferable license to access and use the Flexpit Service for your own personal, non-commercial purposes, subject to your agreement to and compliance with this Agreement. We reserve all rights not otherwise expressly granted by this Agreement. The Flexpit logo and product and service names are owned by Flexpit and are subject to trademark.  You may not use them or display them in any manner without our prior written permission.  Any third-party trademarks or service marks displayed through the Flexpit Service belong to those third parties.

You may not: rent or sell the Flexpit Service to a third party; copy or reverse engineer the Flexpit Service; create derivative works of the Flexpit Service; change or alter User Content or notices; use a bot or other automatic process to harvest information or User Content on the Flexpit Service; introduce a virus or malicious code into the Flexpit Service; use the Flexpit Service to violate a third party’s intellectual property rights; send advertisements or spam using or through the Flexpit Service; use any information in the Flexpit Service to create a competing service; or engage in any activity that violates this Agreement or any applicable law or regulation.

USAGE AND LIMITATIONS

We do not guarantee that the Flexpit Service will be compatible or operate with your mobile phone, tablet, computer, Internet provider’s service plan, mobile carrier’s service plan, or any other piece of hardware, software, equipment, or device you use to access or use the Flexpit Service. You are responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, and other system requirements necessary for your access to and use of the Flexpit Service. You are also responsible for all third-party charges and fees, including to your Internet service provider and mobile carrier, in connection with your access and use of the Flexpit Service and for complying with any contracts, terms of service agreements, and restrictions associated with such third-party services. The quality and availability of the Flexpit Service may be affected by factors outside of our control because the Flexpit Service is provided over the Internet. We will not be liable for damages or losses related to the Flexpit Service being unavailable.

OUR RIGHTS AND OWNERSHIP

We may discontinue or alter any aspect of the Flexpit Service, restrict the time the Flexpit Service is available, install bug fixes, updates, patches, and other upgrades to the Flexpit Service, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. Your only remedy is to discontinue using the Flexpit Service if you do not want a modification we make to the Flexpit Service.

The Flexpit Service is our copyrighted property and it may not be reproduced, recreated, modified, accessed, or used in any manner contrary to what is allowed by this Agreement or disseminated or distributed to any other person. Our images, trademarks, service marks, logos and other content that we display in the Flexpit Service and all accounts, features, and components of the Flexpit Service are our property. Third party materials in the Flexpit Service are licensed to us and these third parties may enforce their ownership rights against you if you violate the terms of this Agreement. Any feedback or suggestions you give to us about the Flexpit Service is voluntary and we may use such feedback or suggestions in our sole discretion without obligation to you.

ADVERTISING

We may use advertising to support the Flexpit Service and may display advertisements and promotions on the Flexpit Service. You agree that we may place advertising and promotions on the Flexpit Service and that such advertising and promotions may be separate or combined with User Content. We control the manner and extent of the advertising and promotions displayed on the Flexpit Service and we reserve the right to change, at our discretion, the content of the advertising and promotions and how it is displayed on the Flexpit Service, including whether the advertising and promotions are identified as paid or sponsored content.

DISCLAIMERS

To the fullest extent allowed under applicable law, we expressly disclaim all warranties, express, implied, or otherwise, including without limitation, warranties of merchantability, title, non-infringement, suitability, integration, correctness, accuracy, and fitness for a particular purpose. We do not warrant that the Flexpit Service will be secure, malware or virus free. We specifically disclaim any representations that the Flexpit Service will meet your requirements, that access to or operation or use of the Flexpit Service will be uninterrupted or error free, that defects in the Flexpit Service, if any, will be corrected, or that results will be timely, accurate, adequate or complete. The Flexpit Service is provided “as is” and “as available” and we do not guarantee the Flexpit Service’s availability or uptime. We do not warrant or represent that use of the Flexpit Service will result in compliance with any applicable laws or regulations, and you understand that you are solely responsible for ensuring compliance with any and all applicable laws and regulations.

NO FITNESS OR HEALTHCARE ADVICE

We do not control, recommend, or endorse any specific trainers, workouts, equipment, treatments, products, services, information, or content (including advertising content) provided by third parties on the Flexpit Service. You are responsible for evaluating and deciding the reputation and truthfulness of specific trainers, workouts, equipment, treatments, products, services, information, and content (including advertising content) that may be available through the Flexpit Service. Do not use the Flexpit Service or anything you find on the Flexpit Service as a substitute for professional training or medical advice, diagnosis, or treatment. We do not make any guarantee about the relationship between you and any trainer, or whether any information, products, or services you find on the Flexpit Service will help you achieve the result(s) you want. Do not send us training, workout, product, service, or medical questions. We are not responsible if you rely on any content on the Flexpit Service. You expressly agree that we are not providing you with any medical advice whatsoever.  We disclaim any and all liability for any injuries, including death and bodily harm, you sustain as a result of using or accessing the Flexpit Service or any User Content, advice, or information you obtain from the Flexpit Service.  You should consult with a physician regarding your use of the Flexpit Service.  You agree that all exercise activities have inherent risks associated with them, including, but not limited to, risk of death, personal injury and property damage.  You voluntarily assume these risks without any inducement by Flexpit, our officers, members, managers, employees, and agents.  You agree that Flexpit does not provide any supervision and does not assume any responsibility for any harm you might suffer as a result of exercise.  You expressly release Flexpit, our officers, members, managers, employees, and agents from any and all claims, regarding of legal theory or type of harm allegedly suffered, arising from or relating to your exercise or athletic activities or your use of the Flexpit Service.  You also agree that in no event will Flexpit or our officers, members, managers, employees, and agents be liable to any third parties arising from or related to your exercise or athletic activities or your use of the Flexpit Service.

Some States restrict or limit the effect of releases such as the one in the preceding paragraph.  If you live in one of those States, in entering into this release, you acknowledge that you have read and understand, and hereby expressly waive the benefits of, Section 1542 of the Civil Code of California (and any similar law of any State, County or Territory) which provides as follows: “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.”

If you reside in the European Union, you have legal remedies that may result from a breach or non-performance of our legal obligations or our negligence and this Agreement does not affect those statutory remedies.

LIMITATION OF LIABILITY

To the fullest extent permitted by law, under no circumstance will we be responsible for lost profits, revenues, financial losses, or indirect, special, consequential, exemplary, or punitive damages. To the fullest extent permitted by law, our total liability for any claims under this agreement or arising from or related to your use of the Flexpit Service, including for any implied warranties, is limited to $50.00. The limitations of this section will apply to any theory of liability, whether based on warranty, contract, statute, tort (including negligence) or otherwise, and whether or not we have been informed of the possibility of any such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

INDEMNIFICATION

You agree to defend, indemnify, and hold us and our officers, members, managers, employees, and agents harmless from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with your use of the Flexpit Service or any User Content available on the Flexpit Service (including but not limited to User Content you post or upload), your breach or alleged breach of this Agreement, your unauthorized use of User Content, unauthorized use of your the Flexpit Service account, your violation of any data privacy or data protection laws, or your violation of any rights of any other person.

TERMINATION

This Agreement is effective until you or Flexpit terminates it. You may terminate this Agreement at any time by discontinuing your use of the Flexpit Service or by deactivating your Flexpit account. We may terminate this Agreement at any time and for any reason without prior notice to you, and accordingly, we may deny you access to the Flexpit Service. If you deactivate your account, all of your User Content will be removed from the Flexpit Service, provided, that your User Content may persist within the Flexpit Service if another user has shared your User Content. YOU ARE RESPONSIBLE FOR MAKING SURE YOUR USER CONTENT AND OTHER INFORMATION YOU DESIRE IS PROPERLY BACKED UP SO YOU HAVE ACCESS TO IT IN THE EVENT OF LOSS, CORRUPTION, OR CESSATION OF THE FLEXPIT SERVICE. WE DO NOT EXPORT YOUR USER CONTENT, INFORMATION, OR OTHER DATA DURING YOUR USE OF THE FLEXPIT SERVICE, OR PROVIDE YOUR USER CONTENT, INFORMATION, OR OTHER DATA TO YOU WHEN YOUR ACCOUNT IS CLOSED.

Termination of this Agreement will not affect any right or relief to which we are entitled at law or in equity. Upon termination of this Agreement, you must terminate all use of the Flexpit Service and any information or materials that have been provided to you. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination of this Agreement will survive such termination and will be fully enforceable thereafter.

GOVERNING LAW

This Agreement and any claim related thereto will be governed by the laws of the State of Texas without reference to its conflicts or choice of law principles. All claims and disputes arising under this Agreement will be brought solely in any court located in Montgomery, Texas. You irrevocably submit and consent to the personal jurisdiction of such courts.

THIRD PARTY CONTENT

We are not responsible or liable for any content, advertising, products, or other materials on or available from third party websites that are linked from the Flexpit Service or advertised in the Flexpit Service or for any privacy or other practices of the third parties operating those websites or providing those products or services. You should not construe the presence of advertising content as our endorsement of those products and services.  You use third parties’ products and services at your own risk and waive any claims against Flexpit and our officers, members, managers, employees, and agents arising from or relating to your use of third parties’ products and services.

COMPLIANCE WITH NON-US LAW

We do not make any representation that the Flexpit Service, User Content, or other material or information provided through the Flexpit Service is appropriate to or available in locations outside of the United States. You may not use the Flexpit Service or export User Content in violation of United States export laws, regulations, or restrictions. If you access the Flexpit Service from outside of the United States, you are responsible for compliance with all applicable laws.

MISCELLANEOUS TERMS

This Agreement controls the relationship between Flexpit and you. This Agreement does not create any third-party beneficiary rights. Our failure to enforce the provisions of this Agreement does not constitute a waiver of our right to enforce them. If any term or provision of this Agreement is held to be invalid or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and the invalid or unenforceable term or provision will not be considered to be part of this Agreement. In the event of a conflict between this Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application will control.

DIGITAL MILLENNIUM COPYRIGHT ACT

We respect the intellectual property of others and we ask our users to do the same. We will respond to effective notices of alleged infringement of copyrighted materials as provided for under U.S. Online Copyright Infringement Liability Act of the U.S. Digital Millennium Copyright Act, 17 U.S.C. §512. Flexpit has adopted and implements a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe copyrights or other intellectual property rights of Flexpit and/or others. If you believe that copyrighted material may have been or is being infringed, then you may notify Flexpit, pursuant to 17 U.S.C. §512 (c) by sending a notice to the address listed below. Such notice must include the following:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  2. Identification of the copyrighted work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
  3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Flexpit to locate the material;
  4. Information reasonably sufficient to permit Flexpit to contact you such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
  5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
  6. A statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Counter Notices

If material that you have posted to a system or network controlled or operated by or for Flexpit has been removed or disabled, you may file a counter notice pursuant to 17 U.S.C.§512 (g). The counter notice must be a written communication sent to the address listed below that includes the following:

  1. A physical or electronic signature of the subscriber;
  2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
  3. A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
  4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if your address is outside of the United States, for any judicial district in which NEREN may be found, and that you will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)(C) or an agent of such person.

Designated agent for all notices, including counter notices

All written notices should be sent to the following Designated Agent:

Charles W. Young, 119 Simon Lake Ln, Spring, TX 77381, 908-963-0542, cyoung@flexpit.com

CHANGES TO THIS AGREEMENT

We reserve the right to change, modify, add, or remove portions of this Agreement. We will post notice of modifications to this Agreement on this page. Changes will become effective immediately but will not apply retroactively. If you do not agree to the modified Agreement you should immediately discontinue your use of the Flexpit Service.

 

NOTICE TO CALIFORNIA USERS

Under California Civil Code Section 1789.3, users of Flexpit Services residing in California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210.

CONTACT US

If you have any questions or would like further clarification about the Flexpit Service or this Agreement, please e-mail us at contact@flexpit.com.