GENERAL TERMS AND CONDITIONS FOR USING OPTIMIZE FITNESS
Last Updated: February 21, 2019
These General Terms and Conditions (“Terms”) are an agreement between Optimize Fitness, Inc (defined below) and each user (defined below) of the Optimize Fitness, Inc app, services, features, software, or website (“Optimize Platform”). These Terms apply to each User’s use of Optimize Fitness and the services it delivers. These Terms apply regardless of you are using the free services or if you take part in a paid membership. Please carefully read these Terms prior to your use of Optimize Fitness to ensure that you agree with them in their entirety. All Users 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 Users with guidance in structuring a fitness routine including nutritional guidance based on their physical characteristics as reported by the User. YOU USE OPTIMIZE FITNESS AT YOUR OWN RISK AND ARE SOLELY RESPONSIBLE FOR VERIFYING THE QUALIFICATIONS AND/OR CREDENTIALS OF THE OTHER USERS 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.
We are Optimize Fitness, Inc. Throughout these Terms, we may be referred to as “we”, “us”, “our”, or “Optimize Fitness”. We are a corporation organized under the laws of the State of Delaware.
You are the Optimize Fitness member using this Optimize Platform and the owner of the device on which it is installed. You may be generally referred to as a “User” or “Member” throughout these Terms.
Users may elect to develop personalized workouts for, provide fitness guidance to, and monitor the progress of other Users. Users that elect to provide these services may be generally referred to as a “Creator” throughout these Terms.
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 and warrant that you have legal capacity to do so, and are of at least eighteen (18) years of age. If you are not at least 18 years or older, you represent and warrant that: (1) you have your parent or guardian’s permission to use Optimize Fitness; and (2) your parent or guardian has read and expressly agrees to these Terms in full and agrees to be liable for any breach of said Terms. No individuals under the age of thirteen (13) may use the Optimize Platform. 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 Terms 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 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.
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.
Please be aware that some of the Services provided by Optimize Fitness require the use of certain fitness equipment. The Optimize Platform 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 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.
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 firstname.lastname@example.org.
Pictures, Communication, and Messaging
Optimize Fitness allows you to post pictures in the Optimize Platform. Using the privacy settings of your account, you may limit visibility of the pictures to all other Users, your friends within the Optimize Platform, 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 Optimize Platform 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:
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):
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.
Users authorize sharing information, including, but not limited to, health status and medical history, with Creators that the User is subscribed to. This authorization may be disabled in the settings menu.
Content that is removed by a User may remain on other User’s devices until the cached content is removed.
For each piece of content that you submit, you represent and warrant that:
As a Creator, you may provide the following services (collectively, “Creator Services”) to Users of the Optimize Platform:
In order to participate as a Creator, you represent and warrant that:
By providing Creator Services, you authorize Optimize Fitness to conduct any and all verifications, background checks, and reference checks necessary to confirm your compliance with the Creator Services Section, including, but not limited to, checks performed by a third-party service. If Optimize Fitness, at any time and at its sole discretion, believes you are not in compliance with this Section, Optimize Fitness can terminate this AGREEMENT without notice to you. Optimize Fitness does not validate any representations or warranties that Creators make in regards to licenses, certifications, skills, experience, or training. No active licenses or certifications are required to be a Creator. Any User that complies with the provisions above may elect to be a Creator.
You grant to Optimize Fitness a non-exclusive, worldwide, royalty-free, irrevocable license to all workouts, tips, trade secrets, training, personal bios, images, videos, and all other content (collectively, “Creator Content”) you use or post within the Optimize Platform for the term of this AGREEMENT and for a reasonable time thereafter that it takes for Optimize Fitness to remove your Creator Content from the Optimize Platform. You grant to Optimize Fitness the right to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Creator Content to provide and/or promote the Optimize Platform, in any media or platform.
As a Creator, your relationship with Optimize Fitness is limited to being an independent, third-party user of the Optimize Platform, and not an employee, agent, or joint venturer of Optimize Fitness for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Optimize Fitness. Optimize Fitness is not itself affiliated with any Creator or User.
This AGREEMENT is perpetual (“Term”). This AGREEMENT may be terminated at any time and for any reason by either Party with thirty (30) days’ written notice. If a Creator terminates this Agreement while Users are following the Creator’s training plan, such Users will be entitled to use and access the terminating Creator’s training plan, including Creator Services and Creator Content, for the remaining duration of each User’s subscription period. When a Creator terminates this Agreement, no new Users will be allowed to subscribe to the Creator Content.
Creator Subscription Fee Sharing and Premium Membership
To enjoy the full benefits of the Optimize Platform, including, without limitation, to use Creator Services, Users must purchase one of two premium memberships subscriptions (“Premium Membership”) to the Optimize Platform: (1) a previously created plan by a Creator; or (2) Elite Services (as defined below). Each Premium Membership will offer different Creator Services, and require different fees (each, a “Subscription Fee”). In consideration for Creator Services, specifically a previously created plan, Optimize Fitness will compensate Creators with 60% of each Subscription Fee if you have Premium Membership, subject to proration. If a Creator does not have Premium Membership, the Creator Services will not be monetized.
Creators may activate their Premium Membership with monthly or yearly Subscription Fees provided to Optimize Fitness. Creators that have Premium Membership and monetized Creator Services are responsible for any tax and income obligations that arise from Premium Membership.
Users will be subscribed to only one Creator at a time, with no minimum or maximum commitment. Creators will only receive a percentage of a Subscription Fee for the duration of time in which such User has subscribed to you and your Creator Services. Therefore, it is possible to receive a percentage of a Subscription Fee for less than one month.
Creators may also use the Optimize Platform to offer remote coaching, customized plans, nutrition guidance, in person training, and similar services (the “Elite Services”). Payment for the Elite Services may be billed through a third-party payment platform distinct from the platform used to bill the Subscription Fees. Creators will receive 90% of the Subscription Fees associated with Elite Services.
Payment will be remitted monthly if the balance owed is greater than $50. Payment will be through a third-party payment platform using the account information you provide to Optimize Fitness. You are responsible for maintaining accurate and current account information to receive payment. If your information changes at any time, you must notify Optimize Fitness immediately at email@example.com. Third-party platforms, including your own banking institution, may be subject to different terms and conditions and privacy practices. Optimize Fitness is not responsible or liable for the availability, accuracy, delay, or performance of such third-party platforms or banks.
Optimize Fitness may, from time to time and at its sole discretion, offer Users free 7-day trial periods or other various incentives to join the Optimize Platform. During such free trial periods or incentive periods, you understand and agree that you will not be paid a Subscription Fee.
Optimize Fitness may, from time to time and at its sole discretion, change these fee sharing terms upon thirty (30) days’ written notice to you. If you disagree with any such changes, your sole remedy is to terminate this AGREEMENT.
While using the Optimize Platform, Users provide Creators with private information including, but not limited to, health status and medical history (collectively, “Confidential Information”). You agree to keep such Confidential Information confidential and to use commercially reasonable efforts to secure the Confidential Information at all times.
User Injury Disclaimer for Creators
Creators and Users use the Optimize Platform at their own risk. You are solely responsible and liable for everything you communicate to Users through your Creator Content, updates to your Creator Content, or direct messages, including damages or causes of action resulting from User injury.
You should consult with a licensed medical professional if you have any questions regarding your Creator Content. We are not responsible in any way for any health problems or injuries sustained by you or Users, including, without limitation, incapacity or death, which may result from or be related to your use of the Optimize Platform.
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 USERS 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:
We reserve the right to modify the Services. You are responsible for providing your own devices access the Optimize Platform (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 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:
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).
Third Party Disputes
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE OPTIMIZE PLATFORM, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, USER, OR OTHER PARTNER IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE THE OPTIMIZE FITNESS PARTIES FROM ANY AND ALL 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.
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.
You agree to indemnify, defend, and hold harmless Optimize Fitness and our affiliates, directors, officers, employees, and agents, from and against any liability, claims, damages, losses and costs (including reasonable attorney's fees) that:
Optimize Fitness 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.
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 Terms, 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 Terms. 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.
If you elect to provide Creator Services, you represent and warrant that you own the rights to any and all Creator Content you post, distribute, share, or otherwise use on the Optimize Platform. You represent and warrant that if third-party permission is required for any of your Creator Content, you have obtained such permission prior to posting, distributing, sharing, or otherwise using it on the Optimize Platform. You are solely responsible for all of your Creator Content and agree to indemnify and defend Optimize Fitness against any and all infringement claims.
Except for your Creator Content and content provided by Users (“User Content”), the content that Optimize Fitness provides to Users on or through the Optimize Platform, including without limitation, any class, workout plan, training, text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights and owned by Optimize Fitness or its third party licensors (collectively, the “Optimize Fitness Content”). You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, post, create derivative works of, publicly perform, publicly display, use for commercial purpose, or distribute any Optimize Content in any way without prior express written permission of the copyright owner of such material or as otherwise specified in these Terms or permitted by the Optimize Platform’s intended functionalities. You may not modify or use any materials obtained from or available through the Optimize Platform, including Creator Content provided by other Creators, unless you have obtained the applicable copyright owner’s prior express written authorization. Optimize Fitness owns all design rights, databases, and compilation and other intellectual property rights in and to the Optimize Content and Optimize Platform, in each case whether registered or unregistered, and all related goodwill. You may not monetize any Creator Content that is created in the Optimize Platform outside of the Optimize Platform.
Optimize Fitness’s name, logos and affiliated applications and technologies are the exclusive property of Optimize Fitness. 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 New Castle County, Delaware. 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 Delaware without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
If any term of these Terms is to any extent illegal, otherwise invalid, or incapable of being enforced, such term will be excluded to the extent of such invalidity or unenforceability; all other terms hereof will remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If application of this Severability provision should materially and adversely affect the economic substance of the transactions contemplated hereby, the Party adversely impacted shall be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability of a term is not due to serious misconduct by the Party seeking such compensation.
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 firstname.lastname@example.org.
Nothing herein shall limit our right to object to subpoenas, claims, or other demands.
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.
Optimize Fitness, Inc.