This Site is designed to allow users to (1) browse and purchase Fitmark merchandise, (2) share fitness ideas and inspiration, and (3) otherwise access information available on or through the Site.
GENERAL MEMBER AND VISITOR CONDUCT AND GENERAL ACKNOWLEDGEMENTS
You understand that the Site is available for your personal, non-commercial use only. You agree that you will not submit materials of any kind that violate or infringe upon the rights of any third party, including copyright, trademark, publicity, privacy or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material and you (and not Fitmark) shall be solely responsible for all materials submitted to the Site.
If the Site allows now or in the future the ability for users to register as members or customers and you elect to register as a member or customer of the Site for any purpose, you agree that all information provided or submitted by you related to your Site account shall be true, accurate, correct, and complete for all purposes and you will maintain and promptly update your information from time to time to ensure the continual accuracy of your information. You further agree that you will not register more than once (e.g., one account per person).
If Fitmark has reasonable grounds to suspect that any information submitted by you is untrue, inaccurate, not current or incomplete, Fitmark shall have the right to suspend or terminate your account and refuse any and all current or future use of the Site (or any portion thereof).
You further agree not to harvest or collect email addresses or other contact information of members from the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications. Additionally, you agree not to use automated scripts to collect information from the Site or for any other purpose. You further agree that you may not use Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair Site. In addition, you agree not to act like a jerk on the Site including agreeing not to use the Site to:
- harass or advocate harassment of any person;
- exploit or attempt to exploit people in any sexual, violent or otherwise inappropriate manner;
- solicit personal information from anyone under 18;
- promote information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous or otherwise objectionable;
- upload, post, email, transmit or otherwise make available any content that we deem to be harmful, threatening, abusive, harassing, vulgar, obscene, pornographic, hateful, or racially, ethnically or otherwise objectionable;
- impersonate any person or entity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
- transmit “junk mail,” “chain letters,” or unsolicited instant messaging, or “spamming” in any fashion; solicit passwords or personal identifying information for commercial or unlawful purposes from users of the Site;
- promote contests or sweepstakes that is not in conformity with all applicable laws;
- promote pyramid or ponzi schemes.
- upload, post, email, transmit or otherwise make available any material that contains software viruses, trojan horses, or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
- use or attempt to use another’s account, service or system without authorization from Site, or create a false identity on the Site; or
- commit or cause the commitment of any “click-fraud” or other act, such as using spiders, robots, web scrapers, screen scrapers, internet macros or other automated software programs, that intentionally misrepresents advertising or voting metrics on the Site.
You understand that by using the Site, you may be exposed to content that you find to be offensive, indecent or objectionable. Under no circumstances will Fitmark be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content uploaded, posted, emailed, transmitted or otherwise made available via the Site. You agree and acknowledge that the information, ideas and opinions appearing on the Site do not necessarily reflect the views of Fitmark.
If you buy a product (or place an order for a product) on this Site, all transactions shall be governed by our Terms of Sale Policy, which terms are incorporated herein for all purposes.
MEMBER CONTENT POSTED ON THE SITE
You are solely responsible for any content, information, data, photos or profiles that you publish or display (hereinafter, “post”) on the Site, transmit to other members, or store via the Site in any manner (collectively the “Member Content”). You understand and agree that Fitmark, in its sole discretion, may review and delete or remove any Member Content that in the sole judgment of Fitmark violate this Agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of other members or any other third parties.
By posting Member Content to any part of the Site, you automatically grant, and you represent and warrant that you have the right to grant, to Fitmark an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, perform, display, reformat, translate, excerpt (in whole or in part) and distribute such information and content in whole and in part, in any and all media now known or hereafter devised, and to prepare, distribute, use, copy, perform, display, reformat, and/or translate derivative works thereof, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.
In the forums, communities, chat areas, news groups, and/or other message or communication facilities (collectively “Online Forums”) of this Site, you agree to use the Online Forums only to send and receive messages and material that are proper and related to the particular Online Forum. Fitmark reserves the right to terminate your access to any or all of the Online Forums at any time without notice for any reason whatsoever. Fitmark has no obligation to monitor the Online Forums. However, Fitmark reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Fitmark sole discretion. You acknowledge that all Online Forums or other areas of the Site where you agree to publish materials viewable by others are public and not private communications, and therefore that your communications may be read by others without your knowledge. Fitmark does not control or endorse the content, messages or information found in any Online Forum and, therefore, Fitmark specifically disclaims any liability with regard to the Online Forums and any actions resulting from the User’s participation in any Online Forum. Online Forum administrators, if any, are not authorized Fitmark spokespersons, and their views do not necessarily reflect those of Fitmark.
PROPRIETARY RIGHTS IN CONTENT ON FITMARK
All content on the Site, including but not limited to design, text, graphics, user functionality, questions, polls, reviews, results, other files, and their selection and arrangement (the “Content”), are the proprietary property of Fitmark, or its advertisers, partners or licensors, or registered members. All rights reserved.
Except as expressly provided herein, the Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, scraped, transmitted, or sold in any form or by any means, in whole or in part, without Fitmark prior written permission.
You may download or print a copy of any portion of the Content solely for your personal, non-commercial use, provided that you keep all copyright or other proprietary notices intact. Notwithstanding the foregoing, in all cases, (except for Member Content owned by you) you may not republish or use Content on any Internet, intranet or extranet site, or on any other tangible or intangible media or incorporate the information in any other database or compilation without first obtaining Fitmark’s prior written consent. Any other use of the Content is strictly prohibited.
All trademarks, logos, trade dress and service marks on the Site are either trademarks of Fitmark or its advertisers, partners or licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Fitmark.
YOU AGREE NOT TO REVERSE ENGINEER, DECOMPILE, DISASSEMBLE OR OTHERWISE REDUCE ANY SOFTWARE OR ASSOCIATED CODE AVAILABLE ON OR THROUGH THE SITE(S) OR AVAILABLE THROUGH ANY SERVICE(S) OFFERED ON OR THROUGH THE SITES TO ANY HUMAN PERCEIVABLE FORM OR TO ANY FORM WHATSOEVER. YOU MAY NOT MODIFY, ADAPT, TRANSLATE, RENT, LEASE, LOAN OR CREATE DERIVATIVE WORKS BASED UPON ANY SUCH SOFTWARE, OR ANY PART THEREOF.
COPYRIGHT AND INTELLECTUAL PROPERTY POLICY
- Fitmark respects the intellectual property rights of others. If you believe your work has been copied or used in a way that constitutes copyright infringement, are aware of any infringing material on the Site, or believe any material on the Site infringes any other intellectual property right (including, without limitation, trademark rights and rights to publicity and privacy), please contact Fitmark’s designated copyright agent at the address listed below and provide the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) (a “DMCA Notice”):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- identification of the copyrighted work(s) that you claim to have been infringed;
- a description of where the material that you claim is infringing is located on the Site;
- your address, telephone number, and email address;
- a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Attn: DMCA Compliance Officer
18303 Main St #334
Jamestown, CA 95327Telephone: 866-549-5472
e-mail: email@example.comIf you submit a DMCA Notice hereunder, you shall be deemed a “Complaining Party” for purposes of this Agreement. Please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed. Moreover, this procedure is exclusively for notifying Fitmark that your intellectual property rights have been infringed.
- Upon receipt of a written DMCA Notice containing the information as outlined above, Fitmark shall:
- Remove or disable access to the material that is alleged to be infringing;
- Forward the written DMCA Notice to such alleged infringer (“Alleged Infringer”);
- Take reasonable steps to promptly notify the Alleged Infringer that it has removed or disabled access to the material.
- Pursuant to 17 U.S.C. § 512 et. al, an Alleged Infringer may provide Fitmark’s designated copyright agent with a counter notice objecting to the Complaining Party’s allegations and Fitmark’s removal of the alleged infringing material (a “Counter DMCA Notice”). To be effective, a Counter DMCA Notice must be a written communication provided to Fitmark’s designated copyright agent that includes substantially the following:
- A physical or electronic signature of the Alleged Infringer;
- 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;
- A statement under penalty of perjury that the Alleged Infringer has 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;
- The Alleged Infringer’s name, address, and telephone number, and a statement that the Alleged Infringer consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the Alleged Infringer’s address is outside of the United States, for any judicial district in which the Fitmark may be found, and that the Alleged Infringer will accept service of process from the person who provided the DMCA Notice or an agent of such person.
- Upon receipt of a Counter DMCA Notice containing the information as outlined in 1 through 4 above, Fitmark shall:
- Promptly provide the Complaining Party with a copy of the Counter DMCA Notice;
- Inform the Complaining Party that it will replace the removed material or cease disabling access to it within ten (10) business days;
- Replace the removed material or cease disabling access to the material within ten (10) to fourteen (14) business days following receipt of the Counter DMCA Notice, provided Fitmark’s Designated Agent has not received notice from the Complaining Party that an action has been filed seeking a court order to restrain Alleged Infringer from engaging in infringing activity relating to the material on Fitmark’s network or system.
LINKS TO OTHER WEBSITES AND THIS SITE
You may link to our site solely for noncommercial purposes. Any other link to our site is expressly prohibited unless you receive Fitmark’s prior written permission.
You are solely responsible for your interactions with other Fitmark members and advertisers that may advertise or post content on the Site. Fitmark reserves the right, but has no obligation, to monitor disputes between you and other members and advertisers. Therefore, you will not hold Fitmark responsible for advertisers, other members or other users’ actions or inactions, including the content of what Site members and/or advertisers post or offer. We have no control over and do not guarantee (a) the truth or accuracy of any advertisements, Member Content, or other content posted on the Site or (b) any advertiser will actually complete a transaction with you at all or to your satisfaction. If you have a dispute with one or more users of the Site or any Site advertiser, you release Fitmark (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. 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 OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
The Site may be temporarily unavailable from time to time for maintenance or other reasons. Fitmark assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, user communications. Fitmark is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Site or combination thereof, including injury or damage to users and/or Site advertisers or to any other person’s computer related to or resulting from participating or downloading materials in connection with the Web and/or in connection with the Site.
To the furthest extent allowed by law, under no circumstances will Fitmark be responsible for any loss or physical damage, including personal injury or death, resulting from anyone’s use of the Site, any content posted on the Site or transmitted to members of the site, or any interactions between users of the Site, whether online or offline. THE SITE AND THE CONTENT ARE PROVIDED “AS-IS” AND FITMARK DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. FITMARK CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE.
LIMITATION ON LIABILITY
EXCEPT IN JURISDICTIONS WHERE SUCH PROVISIONS ARE RESTRICTED, IN NO EVENT WILL FITMARK BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ALSO LOST PROFITS ARISING FROM YOUR USE OF THE SITE, EVEN IF FITMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN AND TO THE FURTHEST EXTENT PERMITTED BY APPLICABLE LAW, FITMARK’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE GREATER OF $100.00 OR THE AMOUNTS PAID BY YOU TO FITMARK FOR YOUR MEMBERSHIP OR FOR SERVICES PROVIDED TO YOU VIA THE SITE.
GOVERNING LAW AND VENUE
This agreement and performance under this agreement shall be governed by the laws of the State of California and the validity, interpretation and effect shall be governed by the laws of California applicable to contracts executed and performed wholly therein. The Federal and State courts within the County of San Francisco in the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts.
You agree to indemnify and hold Fitmark, its subsidiaries, affiliates, officers, agents, and other partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your use of the Site in violation of this Agreement or your violation of any law or the rights of a third party.
AGE REQUIREMENTS; PARENTAL NOTIFICATION AND RESPONSIBILITY
If you wish to submit content to the Sites, you represent that you are at least 18 years of age; provided that if you are under the age of eighteen (18) (a) your parent and/or guardian consents to the terms of this Agreement and (b) any registration and membership application by you submitted to the Site shall only be processed upon confirmation of consent and authorization of your parent(s) and/or legal guardian(s) or by demonstration that you have been deemed an “emancipated minor” by a court of competent jurisdiction. Notwithstanding the foregoing, you must be fourteen (14) years of age or older to access any portion of the Site and if you are under fourteen (14) years of age you are strictly prohibited from providing Fitmark any personally identifiable information. You acknowledge if you provide Fitmark any personally identifiable information and are under the age of fourteen (14), Fitmark will make every effort to destroy/delete that information.
If you are a parent of a minor that has accessed this Site in violation of the terms of this Agreement, please contact us immediately at firstname.lastname@example.org in order to allow us to terminate your child’s membership and remove all information provided by your child to the Site. Please be aware that while Fitmark attempts to ensure inappropriate web sites are not included among its linked sites, parents and guardians are ultimately responsible for monitoring their child’s use of the Site.
FITMARK’S RIGHT TO TERMINATE AND OTHER MEMBERSHIP RESTRICTIONS
Site membership is void outside the United States of America or where otherwise prohibited. By using the Site, you represent and warrant that you agree to abide by all of the terms and conditions of this Agreement. Fitmark may terminate your membership or your access to all or portions of the Site for any reason or no reason at any time, in Fitmark’s sole discretion. Moreover, Fitmark may restrict the per-user amount of bandwidth (upload) availability as it sees fit.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding your use of the Site, and with respect to online conduct and acceptable Member Content. You assume full responsibility for compliance with all local, state and national laws and agree to indemnify and hold Fitmark harmless for any violation of any such law arising out of or related to your use of the Site.