GENERAL TERMS AND CONDITIONS FOR USING OPTIMIZE FITNESS
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. In the event you do not agree with these General Terms and Conditions, you should not use the application and should, instead, remove it entirely from your device.
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. 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.
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.
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. If you elect to use the fee-based features, your Apple iTunes account will be charged at the time you elect to subscribe. 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 Apple ID. 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 Apple iTunes 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. 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 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 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 email@example.com.
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.
Pictures and content posted in Optimize Fitness should 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;
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.
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 may 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 shall 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: (i) you have the right to submit the content to us and grant the licenses set forth above; (ii) we will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) the content complies with this Agreement and all applicable laws.
We provides the Services on an "as is" and "as available" basis. You therefore use the Services and Optimize Fitness at your own risk.
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 device 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 this Agreement or is suitable for all users. Optimize Fitness, Inc. shall not be 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 this Agreement.
To the extent any disclaimer or limitation of liability in this Agreement 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: (i) in no event shall 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 (ii) Optimize Fitness Inc.’s, and its affiliates' total liability to you shall not exceed the amounts paid by you to us over the twelve (12) months preceding your claim(s).
IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO OBTAIN OR ACCESS ANY MATERIAL THROUGH OPTIMIZE FITNESS OR OTHERWISE.
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.
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: (i) arise from your activities on Optimize Fitness; (ii) assert a violation by you of any term of this Agreement; or (iii) 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, 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 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 this Agreement (including any alleged breach thereof), the Service, or the Site shall be BINDING ARBITRATION administered by the American Arbitration Association. 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.
This Agreement, and any dispute between you and us, shall 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.
Headings are for convenience only and shall not be used to construe the terms of this Agreement. If any term of this Agreement is found invalid or unenforceable by any court of competent jurisdiction, that term will be severed from this Agreement. 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.
This Agreement is 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 this Agreement without our prior written consent. No third party shall 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.
This Agreement constitutes the entire understanding between us and you concerning the subject matter hereof and supersedes all prior agreements and understandings regarding the same.
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