GENERAL TERMS AND CONDITIONS FOR USING OPTIMIZE FITNESS

 

Last Updated: October 10, 2017

 

This document contains the General Terms and Conditions which apply to each member’s use of Optimize Fitness and the services it delivers.  These General Terms and Conditions apply regardless of you are using the free services or if you take part in a paid membership. Please carefully read these General Terms and Conditions prior to your use of Optimize Fitness to ensure that you agree with them in their entirety.  All members are required to review and be bound by these Terms in order to participate in Optimize Fitness services. If you disagree with any portion of THESE TERMS, YOU CANNOT USE OPTIMIZE FITNESS IN ANY MANNER and your sole remedies are to discontinue use and remove the program from your device(s). PLEASE CAREFULLY REVIEW THESE TERMS BECAUSE THEY IMPACT YOUR RIGHTS, RELIEF, AND LIABILITY.

Optimize Fitness is intended to provide members with guidance in structuring a fitness routine including nutritional guidance based on their physical characteristics as reported by the member.  YOU USE OPTIMIZE FITNESS AT YOUR OWN RISK AND ARE SOLELY RESPONSIBLE FOR VERIFYING THE QUALIFICATIONS AND/OR CREDENTIALS OF THE TRAINERS YOU SUBSCRIBE TO. The services, guidance, and advice provided by Optimize Fitness are not intended to be substitutes for the advice or counsel of a doctor or other medical professional.  As with any diet or fitness regimen, you should consult with your doctor prior to beginning.  Optimize Fitness services are available for a variety of skill levels, for a variety of activities, and for varying durations, all to fit your particular needs. Not all services will be available in perpetuity and services are subject to change at any time with or without notice and without any liability to you.

 

Definitions

We are Optimize Fitness, Inc.  Throughout these General Terms and Conditions, we may be referred to as “we”, “us”, “our”, or “Optimize Fitness, Inc.”.  We are a corporation organized under the laws of the State of Delaware.

 

You are the Optimize Fitness member using this app and the owner of the device on which it is installed. You may be generally referred to as a “user” or “member” throughout these General Terms and Conditions.

 

The Services are the fitness and nutritional advice and guidance offered through Optimize Fitness.  

 

Terms and Conditions for Use

By registering as a user of Optimize Fitness, you represent that you have legal capacity to do so.  Optimize Fitness is intended for your personal use only, and is not intended to be used for purposes other than as mentioned above.  The Services provided through Optimize Fitness are personal in nature and are not to be resold to others for your financial gain.

 

Additional Terms and Conditions

We reserve the right to add to or modify these General Terms and Conditions from time to time and will notify you any time we do so.  You agree to review any new or modified Terms as they are published and to agree to them or to discontinue use of Optimize Fitness when the new or modified Terms become effective.  

 

Fees and Charges

Use of the basic features of Optimize Fitness is free, but we charge a fee for some of the features on a subscription basis. Once you do agree to a paid subscription, it will be available on any device to which you’ve downloaded Optimize Fitness using the same log-in information.  Subscriptions are available on a pre-paid monthly or annual basis.  Once you subscribe, subscriptions will continue in effect, and the monthly or annual fee will be billed to your account on either the monthly or annual anniversary of the date you subscribed, as the case may be, until you cancel the automatic renewal of your subscription.  You authorize Optimize Fitness, Inc. to charge the payment method that our payment processor has on file for you to pay for any renewal subscription. Subscriptions are at-will for the length of the term that you elect and will continue for succeeding terms until you cancel.  

 

In the event payment is declined, we will notify you and your subscription will terminate at the end of the period for which you have paid.  

 

Cancellation

You may cancel at any time.  If you do cancel any subscription at least 24 hours prior to the renewal date, your account will not be billed for the following term.  Refunds are not available, but the additional Services provided as a part of your paid subscription will remain available until the end of your subscription.

 

Equipment

Please be aware that some of the Services provided by Optimize Fitness require the use of certain fitness equipment.  The app does not come with any equipment, regardless of whether you are using the free or paid versions.  It is your responsibility to obtain access to any fitness equipment necessary to perform the routines outlined in Optimize Fitness at your own expense.  The same is true of any nutritional guidance; Optimize Fitness does not provide food or supplements as a part of its Services.  If you choose to ingest those items, you must purchase them outside of Optimize Fitness at your own expense. Optimize Fitness, Inc. disclaims all representations and warranties regarding, and is not liable for, your use of or the quality of any equipment or nutritional supplements recommended or suggested within the Services.

 

Your Account

In order to use the Services you must first open a user account in the app.  During the registration process and before you begin to use Optimize Fitness, we will ask you to accept these General Terms and Conditions as well as our Privacy Policy.  You are required to register your email address.  We will send you an email in which we ask you to verify the registration by clicking on the "Confirm account" field.  After you have clicked on this field you will be redirected to a website where we will finally confirm your registration.

 

Optimize Fitness offers users the ability to link their Facebook accounts with their Optimize Fitness accounts in order to connect with Facebook friends through Optimize Fitness.  

 

You are responsible for all activity that occurs under your account, including any activity by unauthorized users. You must not allow others to use your account. You must safeguard the confidentiality of your password. If you become aware of any unauthorized access to your account, you must change your password and notify us immediately at team@optimize.fitness.

 

Pictures, Communication, and Messaging

Optimize Fitness allows you to post pictures in the app.  Using the privacy settings of your account, you may limit visibility of the pictures to all other Optimize Fitness users, your friends within the Optimize Fitness app, or only you.   The default setting allows all other users to view these pictures.  

 

Optimize Fitness also allows you to communicate with other users within the app by posting comments to other users’ pictures and responding to comments on threads.  

 

In addition to complying with our Acceptable Use Policy, below, pictures and content posted in Optimize Fitness must not:  

  • Infringe any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.);

  • Contain sexually explicit content or pornography (provided, however, that non-sexual nudity is permitted);

  • Contain hateful, defamatory, or discriminatory content or incites hatred against any individual or group;

  • Advocate harassment or intimidation of another person;

  • Exploit minors;

  • Depict unlawful acts or extreme violence;

  • Contain video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor's legal guardian);

  • Promote information that is false or misleading, promote illegal activities or conduct that is defamatory, libelous, or otherwise objectionable;

  • Advertise or solicit others to purchase any product or service within Optimize Fitness;

  • Depict animal cruelty or extreme violence towards animals; or

  • Contain viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices.

 

We reserve the right (but we do not have the obligation) to remove any photo or content that we feel violates this policy.  In addition, we reserve the right in our sole discretion to remove any user’s posting and/or communication capability based on his or her inability or unwillingness to adhere to our policy.  In the event of continued or especially egregious violations of our policy, we reserve the right to revoke any user’s ability to access Optimize Fitness.  In the event we elect to take this extreme measure, no refund of any subscription will be made.  Our decision as to the foregoing is final.

 

Acceptable Use Policy

In addition to any other restrictions set forth in these Terms, and without limiting those restrictions, we maintain this Acceptable Use Policy. When using the Services, you agree not to (and not to attempt to):

 

  • Make unauthorized copies or derivative works of any content made available on or through the Services;

  • Use any device, software, or routine to interfere or attempt to interfere with the proper working of the Services, or any activity conducted on the Services;

  • Attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Services;

  • Delete or alter any material Optimize Fitness or any other person or entity posts within the Services;

  • Alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available;

  • Use any trademarks, service marks, design marks, logos, photographs, or other content belonging to Optimize Fitness or obtained from the Services;

  • Access, tamper with, or use nonpublic areas of the Services, Optimize Fitness’s (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of Optimize Fitness’s providers;

  • Provide any false personal information to Optimize Fitness;

  • Create a false identity or impersonate another person or entity in any way;

  • Create a new account with Optimize Fitness, without Optimize Fitness’s express written consent, if Optimize Fitness has previously disabled an account of yours;

  • Restrict, discourage, or inhibit any person from using the Services;

  • Disclose personal information about a third person on the Services or obtained from the Services without the consent of that person, or collect information about users of the Services;

  • Use the Services to send emails or other communications to persons who have requested that you not send them communications;

  • Use the Services, without Optimize Fitness’s express written consent, for any unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;

  • Gain unauthorized access to the Services, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Services;

  • Post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services;

  • Interfere with or disrupt the Services, networks, or servers connected to the Services or violate the regulations, policies, or procedures of those networks or servers; or

  • Violate any applicable federal, state, or local laws or regulations or these Terms.

 

Submissions

As between you and us, you own all content that you submit to Optimize Fitness, whether directly via Optimize Fitness or indirectly (for example, via Facebook or Twitter). However, it is important that you understand that by posting a submission to Optimize Fitness, you are granting us and our affiliates a worldwide, perpetual, irrevocable, non-exclusive, sub-licensable (through multiple tiers) royalty-free license and right to use, copy, transmit, distribute, publicly perform and display (through all media now known or hereafter created), and make derivative works from your content (including without limitation, your name and likeness, photographs and testimonials) for any purpose whatsoever commercial or otherwise without compensation to you. In addition, you waive any so-called "moral rights" or "performance rights" in your content.

 

As a default, you agree to grant all users of Optimize Fitness permission to view your content for their personal, non-commercial purposes. In the event you wish to change this setting, you must do so in the privacy settings of your Optimize Fitness account.  If you make suggestions to us on improving or adding new features to Optimize Fitness, we have the right to use your suggestions without any compensation to you.

 

For each piece of content that you submit, you represent and warrant that:

  • You have the right to submit the content to us and grant the licenses set forth above;

  • We will not need to obtain licenses from any third party or pay royalties to any third party;

  • The content does not infringe any third party's rights, including intellectual property rights and privacy rights; and

  • The content complies with these Terms and all applicable laws.

 

General Disclaimers

We provides the Services on an "as is" and "as available" basis. YOU THEREFORE USE OPTIMIZE FITNESS AND THE SERVICES AT YOUR OWN RISK AND ARE SOLELY RESPONSIBLE FOR VERIFYING THE QUALIFICATIONS AND/OR CREDENTIALS OF THE TRAINERS YOU SUBSCRIBE TO.

 

We expressly disclaim any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement, and any other warranty that might arise under any law. Without limiting the foregoing, Optimize Fitness, Inc. makes no representations or warranties:

  • That the Services, or any particular fitness program is suitable for you;

  • Regarding the adequacy or safety of the services for any particular user;

  • That the Services will meet your personal needs;

  • That the Services will be permitted in your jurisdiction;

  • That the Services will be uninterrupted or error-free;

  • Concerning any content submitted by any member;

  • Concerning any third party's use of content that you submit;

  • That we will continue to support any particular feature of the Service; or

  • Concerning sites and resources outside of Optimize Fitness, even if linked to from Optimize Fitness.

 

We reserve the right to modify the Services. You are responsible for providing your own devices access the app (e.g., iPhone, iPad, computer, Internet connection, etc.). We have no obligation to screen or monitor any content and we do not guarantee that any content made available on Optimize Fitness complies with these Terms or is suitable for all users. Optimize Fitness, Inc. is not responsible for loss or corruption of data, and hereby waives all claims with respect to damage to your computer system, internet access, download or display device.

 

To the extent that a secondary party may have access to or view Optimize Fitness content on your computer or mobile device, you are solely responsible for informing such party of all provisions, terms, disclaimers and warnings in these Terms.

 

To the extent any disclaimer or limitation of liability in these Terms does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first used the Services, and no warranties shall apply after such period.

 

NOTHING STATED OR POSTED IN OPTIMIZE FITNESS IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE.

 

Limitation of Liability

To the fullest extent permitted by law:

  • In no event wll Optimize Fitness, Inc., nor its affiliates, be liable for any direct, indirect, incidental, special, consequential, punitive, or exemplary damages, including but not limited to damages for personal injury, death, loss of livelihood, loss of enjoyment, pain and suffering, emotional distress, loss of profits, loss of future earnings, goodwill, use, and/or any other damages or other intangible losses; and

  • Optimize Fitness Inc.’s, and its affiliates' total liability to you will not exceed the amounts paid by you to us over the twelve (12) months preceding the date your claim(s) arose.

 

IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO OBTAIN OR ACCESS ANY MATERIAL THROUGH OPTIMIZE FITNESS OR OTHERWISE AND YOUR SOLE REMEDIES ARE TO DISCONTINUE USE AND REMOVE THE PROGRAM FROM YOUR DEVICE(S).

 

Privacy

Your privacy rights are set forth in our Privacy Policy, which forms a part of these Terms. Please review the Privacy Policy to learn about:

  • What information we may collect about you;

  • What we use that information for; and

  • When and with whom we share that information.

 

CONSENT TO EMAIL: If you elect to provide your email address, you agree and consent to receive email messages from us. These emails may be transactional or relationship communications relating to the Services, such as administrative notices and Service announcements or changes, or emails containing commercial offers, promotions, or special offers from us or third party partners.  You may unsubscribe from these emails at any time by clicking at the link in the bottom of the email or by updating your privacy settings in Optimize Fitness.

 

Indemnification

You agree to indemnify, defend, and hold harmless Optimize Fitness, Inc. and our affiliates, directors, officers, employees, and agents, from and against any liability, claims, damages, losses and costs (including reasonable attorney's fees) that:

  • Arise from your activities on Optimize Fitness;

  • Assert a violation by you of any term of these Terms; or

  • Assert that any content you submitted to Optimize Fitness violates any law or infringes any personal right or third party right, including any intellectual property or privacy right.

 

Optimize Fitness, Inc. reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in connection therewith.

 

License to Use Optimize Fitness

LICENSE: We hereby grant you a limited, non-exclusive license to access and use Optimize Fitness for your own personal, non-commercial purposes. This includes the right to view content available on Optimize Fitness. This license is personal to you and may not be assigned or sublicensed to anyone else.

 

RESTRICTIONS: Except as expressly permitted by us in writing and in compliance with our Acceptable Use Policy, you will not reproduce, redistribute, publicly display, sell, create derivative works from, decompile, reverse engineer, or disassemble Optimize Fitness. Nor will you take any measures to interfere with or damage Optimize Fitness. All rights not expressly granted by us are reserved.

 

23andMe.com

Optimize Fitness provides the capability for you to link your Optimize Fitness account to your 23andMe.com account.  If you elect to do so, your genetic information will be copied from 23andMe.com to Optimize Fitness.  That information will only be viewable by you and is used by us only for purposes that you authorize in Optimize Fitness.  While Optimize Fitness provides the capability to link your Optimize Fitness account and your 23andMe.com account, we have no control over the actions of 23andMe.com.  The communication between 23andMe.com is single-channel, meaning that we get only the information that 23andMe.com provides us.  Once that information is copied into Optimize Fitness it is saved securely on our servers and is retained according to our Privacy Policy.  You acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any genetic information about you obtained from 23andMe.com pursuant to your consent.

 

Intellectual Property

You acknowledge that Optimize Fitness and the Services contain software, graphics, photos, videos, know-how, product ideas, comments, and other material (collectively, "Our Content") that is protected by copyrights, patents, trademarks, trade secrets, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All of Our Content and content developed for us by our partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, we own a copyright in the selection, coordination, arrangement and enhancement of all of Our Content in Optimize Fitness. Subject to your compliance with these General Terms and Conditions, and solely for so long as you are permitted by us to access and use the Services, you may download the application (but never the Content) to any computer or device for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices, and are in compliance with these General Terms and Conditions. Unless otherwise specified, modification of Our Content or use of Our Content for any other purpose, including use of any of Our Content on any other website or networked computer environment is strictly prohibited.

 

Optimize Fitness Inc’s name, logos and affiliated applications and technologies are the exclusive property of Optimize Fitness Inc. All other trademarks appearing on the Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.

 

We own and retain all proprietary rights in Optimize Fitness and in the Services, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. You agree to not copy, modify, transmit, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on Optimize Fitness or through the Services, without first obtaining our prior written consent or, if such property is not owned by us, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.

 

Arbitration and Governing Law

The exclusive means of resolving any dispute or claim arising out of or relating to these Terms (including any alleged breach thereof), the Service, or the Site will be BINDING ARBITRATION administered by the American Arbitration Association IN ACCORDANCE WITH THE TERMS OF THIS SECTION. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against us in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding.

 

By using Optimize Fitness or the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and us (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

 

Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against us (except for small-claims court actions) may be commenced only in the federal or state courts located in Denver, Colorado. You hereby irrevocably consent to the jurisdiction of those courts for such purposes and you irrevocably waive any right to a trial by jury.

 

These Terms, and any dispute between you and us, will be governed by the laws of the State of Colorado without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

 

Miscellaneous

Headings are for convenience only and shall not be used to construe the terms of these Terms. If any portion of these Terms is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from these Terms. No failure or delay by us in exercising any right hereunder will waive any further exercise of that right. Our rights and remedies hereunder are cumulative and not exclusive.

 

These Terms are binding upon and shall inure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives, and permitted assigns. You may not assign your rights, liabilities, privileges, or use of the Services under these Terms without our prior written consent. No third party will have any rights hereunder.

 

You consent to receive all communications including notices, agreements, disclosures, or other information from us electronically. We may provide all such communications by email or by posting them on Optimize Fitness. For support-related inquiries, you may send an email to team@optimize.fitness.  

 

Nothing herein shall limit our right to object to subpoenas, claims, or other demands.

 

These Terms incorporate the following documents by reference:  Privacy Policy

 

These Terms constitute the entire understanding between us and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.

 

END OF DOCUMENT.