Terms of Service
TERMS OF SERVICE
These TERMS OF SERVICE (hereinafter “Agreement”) are entered into between each User (hereinafter “User”) and Mike McDonald Fitness, LLC, a New York Limited Liability Company (hereinafter “Provider”) (the User and Provider are hereinafter each referred to individually as a “Party” and are also referred to collectively as “Parties”). This Agreement is effective as of the earliest date that the User accesses the Service through the Website (hereinafter “Effective Date”).
“User” refers to each party that creates at least one Login to access the Service or that otherwise accesses the Website.
“Login” refers to any information associated with a User, such as a user name and password, or the like, that allows the User to access portions of the Service that are not otherwise available to the User.
“Service” may include, among other things, personal training related information and services made available to the User through the Website and/or through any other communicative means including but not limited to email, phone, and the like. The Service may include allowing the User to access information and content on the Website, which may or may not be related to personal training.
“Website” refers to the website www.mikemcdonaldfitness.com and any other website which Provider utilizes to implement the Service.
2. SERVICE & PAYMENT
Service. The Service is provided as-is on a monthly or annual basis, depending on the subscription type of the User. Payment for each Term is due in advance. The amount of payment required for the Service is subject to change and, specifically, is subject to increase without warning. In the event that User is dissatisfied with a price increase, User’s sole recourse is to discontinue the Service. So long as User has paid in full in advance for User’s next Term, Provider shall endeavor to:
• provide User the ability to create one or more Logins, and;
• allow User to access the Website and the Service through the Website.
The Service may be changed from time to time at Provider’s sole discretion. If at any time the User is dissatisfied with any change in the Service the User’s sole recourse is to discontinue the Service.
User may not transfer its Login to any other party. User shall provide no Login to, and shall allow no party to access, using User’s Login, the Service. User shall notify Provider immediately of any known access of the Service by any third party using User’s Login.
3. SERVICE FAILURE
In the event of any failure on the part of Provider to provide the Service, such as the Website being unavailable or not functioning properly, Provider shall endeavor to restore functionality of the Service within a reasonable amount of time. In the event that the Service is not restored within a reasonable amount of time, User’s sole recourse shall be to discontinue use of the Service.
4. MATERIALS, SOFTWARE, & INTELLECTUAL PROPERTY
Materials. User recognizes and agrees that: (i) all materials provided through the Service, including but not limited to videos, audio clips, text, photos, graphics, and the like, are the property of Provider or its affiliates, licensors, and the like and are protected by copyright, trademark, trade secret, patent, and/or other intellectual property laws; and (ii) User does not acquire any right, title, or interest in or to the materials through this agreement except the limited and temporary right to use them as necessary for their use of the Service.
Intellectual Property. Provider retains all right, title, and interest in and to the Service and any intellectual property rights thereof, worldwide, including without limitation all materials provided, in whatever form, on the Website, any software used to provide the Service, and all logos and trademarks reproduced through the Service, including without limitation the terms Mike McDonald Fitness. This Agreement does not grant to the User any intellectual property rights in or to the Service or in or to any components or materials accessed through the Website.
User shall not copy, publish, upload, post, transmit, distribute or in any way modify any materials accessed or obtained through the Service, except that User may download one copy of such material on a single computer for personal, non-commercial use, provided any copyright, trademark, author attribution and other proprietary notices and legends are not altered or removed.
5. ONLINE POLICIES
6. EACH PARTY’S WARRANTIES
User’s Identity. User warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it is an individual 18 years or older.
Right to Do Business. Each Party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
Disclaimers. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED OR ARISING FROM A COURSE OF DEALING, USAGE, TRADE OR PRACTICE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OF NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Provider makes no warranty that the Service will not be interrupted, hindered or otherwise negatively affected at times by software or other issues of any kind. Provider makes no warranty that there will be 100% uptime of the Service or the Website or that there will not be interruptions to the Service.
Provider does not warrant that material on the Website will be complete and accurate or that it will not contain typographical errors, technical inaccuracies, and the like. Provider assumes no liability or responsibility for errors or omissions in the content of the web site.
User warrants that User shall not use the Website, the Service, or any content or information or software related thereto for any purpose that is unlawful or prohibited by this Agreement.
User agrees to indemnify and hold Provider and its subsidiaries, parents, affiliates, officers, directors, agents, employees, and the like, harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of User’s breach of this Agreement or User’s violation of any law or the rights of any third party.
7. LIMITATION OF LIABILITY
IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL FEES PAID BY USER TO PROVIDER FOR THE SERVICE; AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION 7 APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF USER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 7, Provider’s liability will be limited to the maximum extent permissible.
User’s use of the Service and/or the Website is at the USER’S OWN RISK. Provider shall not be liable for any damages to, or viruses that may infect, any computer equipment or other property on account of User’s or any other person’s access to, use of, or browsing the Website, or downloading of any material, data, text, images, video or audio from the Website, or any other use of the Website or of the Service. Provider shall not be liable for any damages of any kind (general, special, incidental or consequential damages, lost revenues, lost profits or lost data), resulting from the use or misuse of the Website, even if Provider has been informed of the possibility thereof.
The Website may contain links to third party sites. Provider does not endorse any content, items, services, or the like, of any such third party sites. User accesses such third party sites, including the content, items, or services, solely at User’s own risk. Provider makes no representations or warranties with respect to the content, personal information collection practices, ownership or legality of any such third party sites. User agrees that Provider bears no responsibility or liability for the availability of such third party sites or for the content, advertising, products or other materials available through the third party sites. User agrees that, to the maximum extent permitted by law, Provider shall not be liable to User for any loss or damage suffered by User as a result of linking to any third party site.
8. MEDICAL WARNING, DISCLAIMER AND RELEASE
USER WARRANTS THAT USER HAS CONSULTED WITH A PHYSICIAN REGARDING USER’S POTENTIAL USE OF THE SERVICE, PRIOR TO BEGINNING THE SERVICE, AND THAT THE PHYSICIAN CONSENTS TO USER’S USE OF THE SERVICE. THE CONTENT OF THE WEBSITE AND ANY INFORMATION OTHERWISE OBTAINED BY USER THROUGH THE SERVICE IS PROVIDED FOR INFORMATION PURPOSES ONLY AND USER USES SUCH INFORMATION AND CONTENT AT THE VOLUNTARY, SOLE RISK OF THE USER. PROVIDER DOES NOT GUARANTEE THE ACCURACY OF, OR ASSUME ANY LIABILITY FOR, THE CONTENT OF ARTICLES, PRODUCT DESCRIPTIONS, OR THE LIKE, OR ANY OTHER MATERIALS ON OR ACCESSED THROUGH THE WEBSITE, OR ANY OTHER INFORMATION OBTAINED BY USER THROUGH THE SERVICE. PROVIDER DOES NOT GUARANTEE OR WARRANT ANY SPECIFIC TEST, PRODUCT, OR PROCEDURE PRESENTED OR DESCRIBED ON OR ACCESSED THROUGH THE WEBSITE OR OTHERWISE OBTAINED BY USER THROUGH THE SERVICE. RELIANCE UPON ANY INFORMATION OR USE OF ANY PRODUCTS PRESENTED ON OR ACCESSED THROUGH THE WEBSITE OR OTHERWISE DISCLOSED THROUGH THE SERVICE IS AT THE SOLE RISK OF THE USER. NEITHER THE CONTENT ON, OR ACCESSED THROUGH, THE WEBSITE, NOR ANY INFORMATION OR ADVICE RECEIVED BY USER THROUGH THE SERVICE, SHOULD BE RELIED UPON FOR MEDICAL DIAGNOSIS OR TREATMENT OR AS A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE. PROVIDER IS NOT ENGAGED IN THE RENDERING OF MEDICAL ADVICE OR SERVICES. USER WARRANTS THAT USER SHALL NOT DISREGARD MEDICAL ADVICE OR DELAY SEEKING SUCH ADVICE IN RESPONSE TO CONTENT ON, OR ACCESSED THROUGH, THE WEBSITE OR OTHERWISE OBTAINED THROUGH THE SERVICE. USER RELEASES AND RELIEVES, AND AGREES TO RELEASE AND RELIEVE, PROVIDER OF ANY AND ALL LIABILITY FOR ANY INJURIES, CLAIMS OR DAMAGES ARISING OUT OF USER’S USE OF THE SERVICE.
Products and services offered through the Website or the Service are only offered in jurisdictions where they may be legally offered.
The Website’s content is not a substitute for direct, personal, professional medical care and diagnosis. Provider and its employees, officers, directors and the like are not medical professionals. Any advice or information on the Website or otherwise provided through the Service should be cleared with your physician prior to use.
There may be risks associated with participating in activities mentioned on the Website or otherwise through the Service, for people with both known and unknown conditions, or in poor health. Because these risks exist, User agrees to not participate in such activities if User is in poor health or has a pre-existing mental or physical condition. If User chooses to participate in these risks, User does so of User’s own free will and accord, knowingly and voluntarily assuming all risks associated with such dietary activities.
Testimonials, case studies, and examples found at the Website or otherwise provided through the Service are unverified results that have been forwarded to Provider by Users and/or third parties, and may not reflect the typical purchaser’s experience, may not apply to the average person and are not intended to represent or guarantee that anyone will achieve the same or similar results. If Provider discloses typical results based on information provided by a manufacturer or other third party source, User should presume that the typical results as stated are more reliable than the testimonials and other examples found at the Website or otherwise provided through the Service, however User should also always perform due diligence and not take such typical results at face value. Provider is not responsible for any errors or omissions in typical results information supplied by manufacturers or other third parties. If a product or service is relatively new, it may not have been available for purchase long enough to provide an accurate results history.
User agrees that any and all claims for gross negligence or intentional tort shall be settled solely by confidential binding arbitration per the American Arbitration Association’s commercial arbitration rules. All arbitration shall occur in New York County, New York, and New York law shall govern. Arbitration fees and costs shall be split equally regardless of the outcome. User is solely responsible for User’s attorney fees.
9. TERM, TERMINATION AND REFUND POLICY
Free Trials. On the day following the end of any Free Trial the User shall be automatically billed for a Monthly Subscription, and shall be billed each month thereafter for a renewal of the Monthly Subscription. User may avoid the first automatic billing and automatic enrollment in the Monthly Subscription by notifying Provider in writing by at least the last day of the Free Trial.
Monthly Subscriptions. For Monthly Subscriptions this Agreement will continue for one month after the Effective Date (the “Term”). Thereafter, this Agreement will renew for subsequent terms (“Terms”) of one month, unless either Party notifies the other of its intent not to renew by at least the day before the Term ends. Monthly Subscription fees are non-refundable. User may cancel a Monthly Subscription at any time during the month, in which case the Monthly Subscription, and this Agreement, shall expire on the day of cancelation. Any fees paid prior to cancellation will not be refunded except as detailed below under Automatic Billing.
Annual Subscription. For Annual Subscriptions this Agreement will continue for one year after the Effective Date (the “Term”). If an Annual Subscriptions is cancelled within thirty (30) days of initial registration the amount paid to Provider for the Annual Subscription will be refunded in full and the membership will terminate at the time of refund. If an Annual Subscription is cancelled after thirty (30) days of initial registration Provider may, at its sole discretion, provide a prorated refund to User with fees being calculated as if User had been enrolled in a Monthly Subscription.
Automatic Billing. Notwithstanding the rest of this Section 9, User agrees that if notice of cancellation is not received until within three (3) days of any automatic enrollment or renewal, User may be automatically billed. When this occurs, if notice of cancellation was received at least by the day before the end of the Term, such fees shall be refunded in full within a reasonable amount of time.
Cancellation Notice. User may provide notice of cancellation/termination to Provider by emailing Provider from the “Contact Us” page of the Website with the subject line “CANCELLATION” and providing User’s username in the body of the email.
Termination for Cause. Either Party may terminate this Agreement for material breach by written notice, effective in 30 days, unless the other Party first cures such breach.
Effects of Termination. Following any termination, User will no longer have access to features of the Members Area of the Website. The following provisions will survive termination of this Agreement: (i) any obligation of User to pay for Service rendered before termination; and (ii) any other provision of this Agreement that must survive termination to fulfill its essential purpose.
Commissions. If the Website links to a product or service, User agrees that Provider may get paid a commission if User purchases the product or service through the Website link.
Secure Shopping. If User’s computer or web browser does not support a level of security required at any time by Provider or its servers, or any third party provider or its servers, Provider may deny User the ability to make one or more purchases, of any product or service, through the Website or Service. By non-limiting example, this may include a level of security that supports Secure Sockets Layer (SSL) technology.
Notices. Provider may send notices pursuant to this Agreement, by e-mail, to any of User’s email addresses associated with User’s Account, and such notices will be deemed received the day after they are sent. Provider may send notices pursuant to this Agreement, other than by e-mail, to any of User’s physical addresses associated with User’s Account, and such notices will be deemed received three days after they are sent.
Amendment. Provider may amend this Agreement from time to time by posting an amended version at the Website. Such amendment will be deemed accepted and become effective immediately for any User that is not then participating in a Free Trial, a Monthly Subscription or an Annual Subscription. For all other Users, such amendment will be deemed accepted and become effective 30 days after such notice unless User first gives Provider written notice of rejection of the amendment. In the event of such rejection, this Agreement will continue under its original provisions, and the amendment will become effective at the start of User’s next Term. User’s continued use of the Service following the effective date of an amendment, without giving written notice of rejection to Provider, will confirm User’s consent to the amendment. This Agreement may not be amended in any other way except through a written agreement executed by the legally authorized representatives (“Authorized Representatives”) of each Party. Neither the course of conduct between the Parties nor trade practice shall act to modify this Agreement.
No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement. Provider’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right.
Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.
Assignment & Successors. User may not assign this Agreement or any of its rights or obligations hereunder without Provider’s express written consent. Provider may assign any of its rights and duties under this Agreement to any party at any time without notice to User. Except to the extent forbidden in this section, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the Parties.
Choice of Law & Jurisdiction. This Agreement will be governed solely by the laws of the State of Florida, without reference to such State’s principles of conflicts of law. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York County, New York over any legal proceeding directly or indirectly arising out of or relating to the Website, the Service or this Agreement.
Any cause of action or claim User may have with respect to the Website or the Service must be commenced within one (1) year after the claim or cause of action arises.
Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
Certain Notices. Pursuant to 47 U.S.C. Section 230(d), Provider hereby notifies User that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist in limiting access to material that is harmful to minors. Information regarding providers of such protections may be found on the Internet by searching “parental control protection” or similar terms.
Entire Agreement. This Agreement sets forth the entire agreement of the Parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither Party has relied upon any such prior or contemporaneous communication.
USER HAS READ, UNDERSTANDS AND AGREES TO THE TERMS & CONDITIONS OF THIS AGREEMENT.