TERMS AND CONDITIONS
Effective Date: April 10, 2020.
1. Introduction and Overview.
These Terms and Conditions (“Terms”) set forth a legally binding agreement between you and Expect Fitness Inc. (“Expect Fitness”, “we”, “our”, or “us”), and govern your use of any online service location that posts a link to these Terms, and all features, content, and other services that we own, control and make available through such online service location (collectively, the “Service”).
In some instances, both these Terms and separate terms elsewhere on the Service will apply to your use of the Service (“Additional Terms”). To the extent there is a conflict between these Terms and any applicable Additional Terms, the Additional Terms will control unless they expressly state otherwise.
2. Service Use.
A. Health Warning
Do not use the Service if your physician or health care provider advises against it or if you have any of these conditions, including, but not limited to hemodynamically significant heart disease, restrictive lung disease, incompetent cervix or cerclage, multiple pregnancies at risk of premature labor, persistent second or third trimester bleeding, placenta previa after 26 weeks of gestation, premature labor during your current pregnancy, ruptured membranes, preeclampsia or pregnancy-induced hypertension. If you experience vaginal bleeding, regular painful contractions, amniotic fluid leakage, headache, muscle weakness affecting balance or calf pain or swelling at any time, faintness, dizziness, pain or shortness of breath while exercising you should stop immediately.
NOTHING STATED OR POSTED ON THE SERVICE IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICAL OR PROFESSIONAL ADVICE OR CARE. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. PLEASE READ OUR FULL PROFESSIONAL ADVICE AND MEDICAL DISCLAIMER IN SECTION 3 BELOW BEFORE COMMENCING YOUR USE OF THE SERVICE.
The Service contains: (i) materials and other items relating to Expect Fitness and its products and services, and similar items from our licensors and other third parties, including all layout, information, databases, articles, posts, text, data, files, images, scripts, designs, graphics, instructions, illustrations, photographs, sounds, pictures, videos, advertising copy, URLs, technology, software, interactive features, the “look and feel” of the Service, and the compilation, assembly, and arrangement of the materials of the Service and any and all copyrightable material; (ii) trademarks, logos, trade names, trade dress, service marks, and trade identities of various parties, including those of Expect Fitness; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). All right, title, and interest in and to the Service and the Content is the property of Expect Fitness or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
The Service and the content provided therein is available for users of various skill levels, for a variety of activities, and for varying durations. Content may not always be available and is subject to change at any time with or without notice and without any liability to you. Content is intended for informational purposes only and should not be considered medical or healthcare advice.
C. Limited License.
Subject to your strict compliance with these Terms and any applicable Additional Terms, Expect Fitness grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to stream, display, view, use, and play the Content on a personal computer, browser, laptop, tablet, mobile phone, or other internet-enabled device (each, a “Device”) and/or print one copy of the Content as it is displayed to you, in each case for your personal, non-commercial use only. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be suspended or terminated for any reason, in Expect Fitness’ sole discretion, and without advance notice or liability. Your unauthorized use of the Content may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability.
Certain features of the Service may require you to register an account. When registering an account, you agree to: (i) provide true, accurate, current, and complete information; (ii) maintain and update this information to keep it true, accurate, current, and complete; (iii) protect and prevent unauthorized access to your account; (iv) not transfer or share your account with any third party; and (v) immediately notify us of any suspected or actual unauthorized use of your account or breach of security. Please note that you are solely responsible for all activities that occur under your account, whether or not you authorized the activity, and we are not liable for any loss or damage to you or any third party arising from your failure to comply with any of the foregoing obligations.
You may not use the Service unless you are at least eighteen (18) years old or the age of majority in your jurisdiction.
You may not: (i) use the Service or Content for any political or commercial purpose; (ii) engage in any activity in connection with the Service or Content that is unlawful, harmful, offensive, sexually explicit, obscene, violent, threatening, harassing, abusive, falsely representative of your persona, invasive of someone else’s privacy, or otherwise objectionable to Express Fitness; (iii) harvest any information from the Service or Content; (iv) reverse engineer or modify the Service or Content; (v) interfere with the proper operation of or any security measure used by the Service or Content; (vi) collect information about others; (vii) advertise or solicit others to purchase any product or service within the Service; (viii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; (ix) publicize or promote commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes; (x) infringe any intellectual property or other right of any third party; (xi) use the Service or Content in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you; or (xii) otherwise violate these Terms or any applicable Additional Terms.
You agree to comply with all local, state, federal, national, foreign, supranational, and international laws, statutes, ordinances, regulations, treaties, directives, and agreements that apply to your use of the Service and Content.
Expect Fitness may suspend or terminate the availability of the Service and Content, in whole or in part, to any individual user or all users, for any reason, in Expect Fitness’ sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Service, or upon notice from Expect Fitness, all rights granted to you under these Terms or any applicable Additional Terms will cease immediately, and you agree that you will immediately discontinue use of the Service and Content.
Expect Fitness may suspend, disable, or delete your account (or any part thereof) or block or remove any content you submitted if Expect Fitness determines that you have violated any provision of these Terms or that your conduct or content would tend to damage Expect Fitness' reputation or goodwill. If Expect Fitness deletes your account for the foregoing reasons, you may not re-register for the Service. Expect Fitness may block your email address and Internet protocol address to prevent further registration. Expect Fitness is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
G. Reservation of Rights.
All rights not expressly granted to you are reserved by Expect Fitness and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of the Content or Service for any purpose is prohibited.
3. Medical Disclaimer.
We care about the health of you and your baby.
Do not start this fitness program if your physician or health care provider advises against it or if you have any health conditions that prevent you from participating in a fitness program, including, but not limited to hemodynamically significant heart disease, restrictive lung disease, incompetent cervix or cerclage, multiple pregnancies at risk of premature labor, persistent second or third trimester bleeding, placenta previa after 26 weeks of gestation, premature labor during your current pregnancy, ruptured membranes, preeclampsia or pregnancy-induced hypertension. If you experience vaginal bleeding, regular painful contractions, amniotic fluid leakage, headache, muscle weakness affecting balance or calf pain or swelling at any time, faintness, dizziness, pain or shortness of breath while exercising you should stop immediately.
Consult your doctor before starting this or any other fitness program to determine if it is right for your needs. This is particularly true if you have a history of, including, but not limited to: anemia, unevaluated maternal cardiac arrythmia, chronic bronchitis, extreme underweight body mass index less than 12, extremely sedentary lifestyle, intatruterine growth restriction in current pregnancy, orthopedic limitations, poorly controlled type 1 diabetes, heart disease, high blood pressure, seizure disorders or hyperthyrodism, or if you have ever experienced chest pain when exercising or have experienced chest pain in the past month when not engaged in physical activity, smoke, have high cholesterol, are obese, or have a bone or joint problem that could be made worse by a change in physical activity.
In using the Service, you affirm that either (A) all of the following statements are true: (i) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (ii) you have never felt chest pain when engaging in physical activity; (iii) you have not experienced chest pain when not engaged in physical activity at any time within the past several months; (iv) you have never lost your balance because of dizziness and you have never lost consciousness; (v) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (vi) your physician is not currently prescribing drugs for your blood pressure or heart condition; (vii) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (viii) you do not know of any other reason you should not exercise or, if applicable engage in intermittent fasting, including without limitation pregnancy; or (B) your physician has specifically approved of your use of the Service.
If you are in the United States and think you are having a medical or health emergency, call your health care professional, or 911, immediately.
4. Community Guidelines; User Content
Expect Fitness may offer you the ability to submit or post User Content through its Service, provided such submission or transmission of User Content is in strict compliance with these Terms. For the purposes of these Terms, “User Content” means video, images, text, comments, audio recordings and other content, that you upload, post or transmit (collectively “submit”) to the Service.
Expect Fitness may give you the ability to submit User Content in order to create a community experience where our users can encourage, support and motivate one another. You agree to follow these guidelines when submitting User Content:
SUPPORT — For any support related questions or issues that require help beyond what we can offer in these Terms, please contact our Customer Support team at firstname.lastname@example.org for the fastest response.
R-E-S-P-E-C-T — Please be respectful and courteous to the members of the Service.
FEEDBACK — We welcome constructive feedback (both positive and negative) on your Expect Fitness experience and ask that you contact us directly at email@example.com so that we can be sure we hear your thoughts on our Service and strive to improve.
REPORTING POSTS — If you notice any User Content that you believe to be in violation of these Terms or spam, report it to the administrators at firstname.lastname@example.org.
You may not submit any User Content that: (i) infringes any third party's copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contains sexually explicit content or pornography (provided, however, that non-sexual nudity is permitted); (iii) contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group; (iv) advocates harassment or intimidation of another person; (v) exploits minors; (vi) depicts unlawful acts or extreme violence; (vii) contains 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); (viii) depicts animal cruelty or extreme violence towards animals; or (ix) contains viruses, time bombs, trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices.
C. User Content Screening and Disclosure.
We do not, and cannot, pre-screen or monitor all User Content. However, Expect Fitness has the right (but not the obligation) to monitor your conduct and User Content submission on our Service and you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning your submission of any User Content. We have the right, but not the obligation, in our sole discretion to edit, refuse to post, remove, disallow, block or delete any User Content. Under no circumstances will Expect Fitness be liable for any of your User Content. You shall be solely responsible for any User Content submitted through your account. We may access, preserve or disclose any of your information or User Content (including without limitation chat text) if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against us or to comply with legal process (for example, subpoenas or warrants), including those issued by courts having jurisdiction over us or you; (ii) enforce or administer our agreements with users, such as these Terms; (iii) for fraud prevention, risk assessment, investigation, customer support, providing the app services or engineering support; (iv) protect the rights, property or safety of Expect Fitness, its users, or members of the public or (v) to report a crime or other offensive behavior.
D. Objectionable Content.
Expect Fitness may also act to remove Objectionable Content. The decision to remove Objectionable Content shall be made at Expect Fitness' sole discretion. "Objectionable Content" includes, but is not limited to: 1. User Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, or libelous, 2. User Content that is hateful, or advocates hate crimes, harm or violence against a person or group, 3. User Content that may harm minors in any way; 4. User Content that has the goal or effect of "stalking" or otherwise harassing another 5. Private information about any individual such as phone numbers, addresses, Social Security numbers or any other information that is invasive of another's privacy; 6. User Content that is vulgar, offensive, obscene or pornographic, 7. Unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; 8. Material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
E. Social Features.
Expect Fitness may provide opportunities for you to submit User Content through social features on the Service. These are intended to be a community-based venue for Expect Fitness users to chat, interact, motivate and support one another.
F. Ownership of User Content
As between you and Expect Fitness, you own all User Content that you submit to the Service, whether directly via the Service or indirectly (for example, via Facebook or Twitter). However, you grant us non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your User Content. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your User Content is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your User Content.
You further grant all users of the Service permission to view your User Content for their personal, non-commercial purposes.
For each piece of User Content that you submit, you represent and warrant that: (i) you have the right to submit the User Content to Expect Fitness and grant the licenses set forth above; (ii) Expect Fitness will not need to obtain licenses from any third party or pay royalties to any third party; (iii) the User Content does not infringe any third party's rights, including intellectual property rights and privacy rights; and (iv) the User Content complies with the Terms and all applicable laws.
5. Unsolicited Submissions.
When you submit any unsolicited ideas, feedback, opinions, techniques, images, sounds, videos, or other content to us through or relating to the Service (“Submissions”), you grant us a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, transferable and cost-free right and license to host, store, use, display, reproduce, modify, adapt, edit, combine with other materials, publish, distribute, create derivative works from, promote, exhibit, broadcast, syndicate, sublicense (including, without limitation, to third party media channels, platforms, and distributors), publicly perform, publicly display, and otherwise use and exploit in any manner whatsoever, or grant third parties the right to do any of the foregoing, all or any portion of your Submissions, for any purpose whatsoever in all formats, on or through any means or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You further irrevocably grant us the right, but not the obligation, to use your name in connection with your Submissions. You also agree to waive any right of approval for our use of the rights granted herein and agree to waive any moral rights that you may have in any Submissions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights.
You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted in this Section. Our receipt of your Submissions is not an admission of their novelty, priority, or originality, and it does not impair our right to existing or future intellectual property rights relating to your Submissions.
You represent and warrant that you own or have the necessary rights, licenses, consents, and permissions to grant us the rights granted in this Section. You alone, though, retain whatever legally cognizable right, title, and interest that you have in your Submission and remain responsible for them.
6. Copyright Infringement.
A. DMCA Notification.
Expect Fitness responds to copyright notifications submitted under the Digital Millennium Copyright Act, 17 U.S.C. § 512 (“DMCA”). To submit a notice of claimed copyright infringement under U.S. law, provide our designated agent with the following written information:
A physical or electronic signature of the copyright owner or a person authorized to act on his or her behalf;
Identification of the copyrighted work claimed to have been infringed;
Identification of the infringing material and information reasonably sufficient to permit us to locate that material;
Your contact information, including your address, telephone number, and an e-mail address;
A statement that you have a good faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent is:
Expect Fitness, Inc.
370 Jay Street, 7th Floor
Brooklyn, NY 11201
You can obtain further information from the Copyright Office’s online directory at www.dmca.copyright.gov/osp.
We will respond to notifications of claimed copyright infringement in accordance with the DMCA.
B. Counter Notification.
If you believe that your material has been removed in error in response to a copyright notification, you may submit a counter notification to our designated agent with the following written information:
A physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address is located, or if your address is outside of the U.S., for any judicial district in which Expect Fitness may be found, and that you will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
We will respond to counter notifications in accordance with the DMCA.
7. Videos and Products.
Certain areas of the Service require a one-time payment before you can access them (the “Videos”). The Videos can be purchased by paying a fee upon completion of your registration and submission of your payment information unless you have a one-time free access code. When you register for the Videos, you consent to get access to the premium areas of our Service immediately. We refer to any additional, paid access services we offer beyond the Service as an “Add-On Service.” For example, our personalized coaching service is an Add-On Service. Each Add-On Service is a separate access fee service and is subject to an additional fee. ONCE YOU HAVE ACCESSED THE VIDEOS OR AN ADD-ON SERVICE EXPRESS FITNESS WILL NOT REFUND ANY PAYMENT ALREADY MADE.
We do our best to describe every product or service offered on our Service as accurately as possible. However, we are human, and therefore we do not warrant that product and service specifications, pricing, or other content on the Service is complete, accurate, reliable, current, or error-free. In the event of any errors relating to the pricing or specifications, Expect Fitness shall have the right to refuse or cancel any orders in its sole discretion. If we charged your credit card or other account prior to our cancellation, we will issue a credit to your account in the amount of the charge. Additional Terms may apply. If a product or service you purchased from Expect Fitness is not as described, your sole remedy is to cancel the purchase and receive a credit for the purchase price.
All physical products purchased from the Service are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon delivery to the carrier.
8. Customer Support.
If you have any questions or comments, please send an e-mail at email@example.com. You acknowledge that the provision of support is at Expect Fitness’ sole discretion and that we have no obligation to provide you with customer support of any kind. All legal notices to us must be mailed to: Expect Fitness, Inc. 1732 1st Ave #21018 New York, NY 10128.
When you communicate with us electronically, you consent to receive communications from us electronically. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
9. Third Party Services.
10. Service Features.
A. Wireless Device Features.
B. Location-Based Features.
E-mails: You can opt-out of receiving certain promotional e-mails from us at any time by following the instructions as provided in e-mails to click on the unsubscribe link, or contacting us at firstname.lastname@example.org with the word UNSUBSCRIBE in the subject field of the e-mail. Your opt-out will not affect non-promotional e-mails, such as those about your account, transactions, servicing, or Expect Fitness’s ongoing business relations.
Please note that any opt-out by you is limited to the e-mail address used and will not affect subsequent subscriptions.
11. Notice to U.S. Government End Users.
Any applications installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights as "Commercial Items," as that terms is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
12. Agreement to Arbitrate Disputes and Choice of Law.
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
A. We Both Agree to Arbitrate.
You and Expect Fitness agree to resolve any claims relating to these Terms through final and binding arbitration, except to the extent you have in any manner violated or threatened to violate Expect Fitness’s intellectual property rights (for example, trademark, trade secret, copyright, or patent rights). Under such circumstances Expect Fitness may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described herein.
B. What is Arbitration.
Arbitration is more informal than a lawsuit in court and seeks to resolve disputes more quickly. Instead of a judge or a jury, the case will be decided by a neutral arbitrator who has the power to award the same damages and relief that a court can. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.
C. Arbitration Procedures.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures in front of one arbitrator. If there is a conflict between JAMS Rules and the rules set forth in these Terms, the rules set forth in this Terms will govern. The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267. To initiate arbitration, you or Expect Fitness must do the following things:
(1) Write a demand for Arbitration. The demand must include a description of the Claim and the amount of damages sought to be recovered. You can find a copy of a demand for Arbitration at www.jamsadr.com.
(2) Send three copies of the demand for Arbitration, plus the appropriate filing fee to: JAMS to your local JAMS office or to JAMS, Two Embarcadero Center, Suite 1500, San Francisco, CA 94111.
(3) Send one copy of the demand for Arbitration to the other party.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. If travelling to New York is a burden, you may participate in the arbitration by phone or via document submission to the fullest extent allowable by the arbitrator. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration under this agreement shall be held in the United States in New York, NY under New York law without regard to its conflict of laws provisions. The arbitration may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
D. Authority of Arbitrator.
The arbitrator will decide the rights and liabilities, if any, of you and Expect Fitness, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Expect Fitness.
E. No Class Actions.
You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
F. Waiver of Jury Trial.
THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Expect Fitness in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS AGREEMENT TO ARBITRATE.
G. Choice of Law/Forum Selection.
In any circumstances where the Agreement to Arbitrate Disputes permits the parties to litigate in court, these Terms shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in New York, NY.
13. Disclaimer of Representations and Warranties.
THE SERVICE IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER EXPECT FITNESS NOR ANY OF ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "EXPECT FITNESS PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER AS TO THE CONTENT OR OTHER SERVICES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
14. Limitations of Our Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE, (B) THESE TERMS OR (C) YOUR MISUSE OF THE SERVICE OR ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICE. THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. EXPECT FITNESS PARTIES’ TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS PAYABLE BY YOU TO EXPECT FITNESS OVER THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM(S).
THE SERVICE IS INTENDED SOLELY AS A GENERAL FITNESS INFORMATION. EXPECT FITNESS DOES NOT REPRESENT IN ANY WAY THAT ANY NUTRITIONAL OR FITNESS ADVICE PROVIDED BY A TRAINER COACH CONSTITUTES QUALIFIED EXPERT ADVICE. IF YOU ENCOUNTER AN EXPECT FITNESS COACH WHO IS PROVIDING EXPERT ADVICE IN VIOLATION OF THESE PRINCIPLES, PLEASE CONTACT US IMMEDIATELY AT email@example.com YOU SHOULD ALWAYS SEEK EXPERT PROFESSIONAL ADVICE IN NUTRITIONAL AND HEALTH MATTERS, AND SHOULD NOT RELY ON ANY OPINIONS EXPRESSED THROUGH THE EXPECT FITNESS SERVICE AS EXPERT OPINIONS OR ADVICE.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
You agree to defend, indemnify and hold harmless the Expect Fitness Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys’ fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your Submissions; (iii) your misuse of the Service; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (vi) your use of a Third Party Service; or (vii) any misrepresentation made by you. Expect Fitness reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with Expect Fitness’ defense of any claim. You will not in any event settle any claim without the prior written consent of Expect Fitness.
This provision does not require you to indemnify us for any unconscionable commercial practice by us or for our fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Service.
16. Waiver of Injunctive or other Equitable Relief.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, SUBMISSIONS, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY COMPANY OR A LICENSOR OF COMPANY.
17. Updates to Terms.
We reserve the right, at any time in our sole discretion, to modify or replace any part of these Terms and any applicable Additional Terms, without prior notice. You agree that we may notify you of any updated Terms and any applicable Additional Terms by posting them on the Service so that they are accessible via a link from the home page, and/or to send you an e-mail to the last e-mail address you provided to us. All such changes are effective immediately when we post them, or such later date as may be specified in the notice of updated Terms and any applicable Additional Terms. Your continued use of the Service after such changes take effect will signify your acceptance of such changes. If you object to any such changes, your sole recourse is to cease using the Service.
18. General Provisions.
A. Consent or Approval.
No Expect Fitness consent or approval may be deemed to have been granted by Expect Fitness without being in writing and signed by an officer of Expect Fitness.
The provisions of these Terms and any applicable Additional Terms, which by their nature should survive termination of your use of the Service, including sections on Service Use (except for the limited license), Unsolicited Submissions, Copyright Infringement, Subscriptions and Products, Customer Support, Third Party Services, Service Features, Agreement to Arbitrate Disputes and Choice of Law, Disclaimer of Representations and Warranties, Limitations of Our Liability, Indemnification, Waiver of Injunctive or Other Equitable Relief, Updates to Terms, and General Provisions, will survive.
C. Severability; Interpretation; Assignment.
If any provision of these Terms, or any applicable Additional Terms, is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms or the Additional Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms or the Additional Terms. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. Expect Fitness may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. These Terms and any applicable Additional Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Expect Fitness.
D. Complete Agreement; No Waiver.
These Terms, and any applicable Additional Terms, reflect our complete agreement regarding the Service and supersede any prior agreements, representations, warranties, assurances or discussion related to the Service. Except as expressly set forth in these Terms or any applicable Additional Terms, (i) no failure or delay by you or Expect Fitness in exercising any of rights, powers, or remedies under will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms or any applicable Additional Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.
E. International Issues.
Expect Fitness controls and operates the Service from the U.S., and Expect Fitness makes no representation that the Service is appropriate or available for use beyond the U.S. You agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or to any sale of goods carried out as a result of your use of the Service. Software related to or made available by the Service may be subject to export controls of the U.S., and, except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions.
F. Investigations; Cooperation with Law Enforcement.
Expect Fitness reserves the right to investigate and prosecute any suspected breaches of these Terms or the Service. Expect Fitness may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
G. California Consumer Rights and Notices.
Residents of California are entitled to the following specific consumer rights information: you may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at: 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at (916) 445-1254. Their website is located at: http://www.dca.ca.gov.