TERMS AND CONDITIONS OF USE
POWERED BY FITNESS INC. ("PBF") OWNS AND OPERATES THE SERVICES. PBF RESERVES THE RIGHT TO CHANGE ANY TERMS OR CONDITIONS WITHOUT NOTICE, EFFECTIVE UPON THEIR POSTING. PBF OR ITS SERVICE PROVIDERS, PARENTS, AFFILIATES AND BUSINESS ASSOCIATES MAY IMPOSE LIMITS ON CERTAIN FEATURES AND SERVICES OR RESTRICT YOUR ACCESS TO PARTS OR ALL OF THE SERVICES WITHOUT NOTICE OR LIABILITY; PBF MAY ALSO TERMINATE YOUR USE OF THE SERVICES AT ANY TIME IN ITS SOLE DISCRETION.
Use of Services; Ownership of Intellectual Property Rights
All text, photographs, images, illustrations, artwork, audio and video clips, design, software, graphic material, trademarks, service marks and trade names, and all intellectual property rights in and to such items (hereinafter "Content") constitute the sole and exclusive property of PBF or its subsidiaries, affiliates, licensors and content providers. The User is granted a personal, non-exclusive, non-assignable and non-transferable license to use the Content for non-commercial and personal, informational use only. The following acts are additionally prohibited without PBF's prior written approval: copying of the Services or the Content or any portion, variations or derivatives thereof; reproduction, modification, creation of derivative works, display, performance, publication, distribution, dissemination, broadcast or circulation of any Content, in whole or in part (including without limitation, the display and distribution of the Content via a third party application or Web site); and disassembling, decompiling, reverse engineering or otherwise modifying the Content.
- Subscription Services
PBF will make available to Customer (on a non-exclusive basis) the Subscription Services indicated in the Order Form (the “Services”). Customer agrees that its purchase of a subscription to the Subscription Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by PBF regarding future functionality or features.
Customer will adhere to the PBF's Acceptable Use Policy and use the Subscription Services only for its own, internal business purposes. Customer will not: resell, copy, frame or mirror any part or content of the Subscription Services; make the Subscription Services available for timesharing or service bureau purposes; or otherwise provide access to the Subscription Services to any third party, except as such third party access is expressly agreed to between the parties in the Order Form. Customer will not, subject to any non-waivable rights Customer may enjoy under applicable law, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Subscription Services or any software, documentation or data related to the Subscription Services; interfere with or disrupt the integrity or performance of the Subscription Services or third party data contained therein; attempt to gain unauthorized access to the Subscription Services or its related systems or networks; modify, translate, or create derivative works based on the Subscription Services; or remove any proprietary notices or labels. Customer further agrees to those further restrictions, if any, on Customer’s access to or use of the Subscription Services which are indicated in the Order Form.
PBF agrees to resell to Customer the hardware and/or third party software items (collectively, “Products”), if any, indicated in the Order Form subject to the terms and conditions of this Agreement.
- Professional Services
PBF will provide Customer with the Professional Services, if any, set forth in the Order Form(s) (“Professional Services”). Such Professional Services shall be scheduled as mutually agreed upon subject to PBF's availability following receipt by PBF of the signed Agreement and any related deposit. Should Customer require rescheduling of confirmed Professional Service dates, PBF will make commercially reasonable efforts to accommodate Customer's request and provide Customer with the next available dates based on PBF's then-current availability. Customer shall be responsible for paying for any Professional Services that have been scheduled and confirmed between Customer and PBF if canceled or rescheduled by Customer less than thirty (30) days prior to the commencement of such Professional Services, unless (and only to the extent that) PBF is able to reschedule the resource with another customer using commercially reasonable efforts.
- Payment Terms
Customer agrees to pay the fees set out in the Order Form(s). All fees are payable in accordance with the terms set out in, and in the currency specified in, the Order Form(s). Customer will also pay for Professional Services at PBF’s then prevailing rates, unless otherwise indicated on the Order Form. For Professional Services provided on-site at Customer’s site or another Customer designated location, Customer will also be responsible for including travel, meals, accommodation and related expenses incurred by PBF’s employees or agents. Unless otherwise indicated on the invoice, all invoices are due upon receipt. Fees stated in the Order Form are exclusive of Taxes. PBF does not provide credits or refunds for fees already due or paid. If Customer wishes to decrease its use of the Subscription Services after the (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Customer may do so after the Initial Term provided that Customer notifies PBF thirty (30) days in advance. If Customer wishes to increase its use of the Subscription Services (to the extent service capacity or usage is limited pursuant to the Order Form(s)), Customer must notify PBF in advance and pay any applicable fees.
Any invoice disputes must be initiated by Customer in good faith and in writing; Customer will be entitled to notify PBF of any invoice dispute by the due date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer and will be due and payable. If Customer initiates a dispute with regard to a particular invoice, any undisputed amounts charged on such invoice will continue to be due and payable. PBF and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after PBF’s receipt of Customer’s notice to PBF regarding such dispute. With regard to any undisputed invoiced amount that is not paid when due, PBF reserves the right to charge, and Customer agrees to pay, a late payment fee on the unpaid balance from the due date until paid (whether before or after judgment) equal to one percent (1%) per month. If it is determined that PBF properly charged any amount disputed and withheld by Customer, the late fee will be assessed and paid on the disputed, withheld amount.
Except for a good faith dispute as outlined above, should Customer fail to make any payment hereunder when due, PBF reserves the right to suspend or interrupt the provision of Customer’s access to the Subscription Services (and all related services provided hereunder) until such non-payment is remedied, provided that PBF provides Customer with five (5) days advance notice (including via email notification or other form of notification via the Subscription Services) that fees remain outstanding. In such event, PBF shall not be precluded from exercising any additional remedies that might be available to it under the terms of this Agreement or otherwise.
If the customer chooses terminate this Agreement before the expiry of their minimum term (or payment amount) if all instalments and fees due up to the date of termination are paid and the relevant cancellation fee is paid in full at time of cancellation request. The cancellation fee, will then become 20% from each of the remaining payments on the account.
Customer is responsible for paying all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”) associated with Customer’s purchases hereunder. For clarity, PBF is solely responsible for taxes assessable based on PBF’s income, property and employees. If PBF has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order Form and invoiced to and paid by Customer, unless Customer provides PBF with a valid tax exemption certificate authorized by the applicable competent authority in the relevant jurisdiction (or such other form of confirmation supplied for the same purpose) at least five (5) business days prior to the due date of the applicable PBF invoice. All fees are payable in full and without reduction or withholding for Taxes. If, for whatever reason, Customer is required by law to withhold any Taxes from fees payable hereunder, Customer shall gross up its payments to PBF so that PBF receives the fees in full and free of any such deductions. Customer shall, upon request of PBF, provide to PBF proof that Taxes have been paid, if such payment is not made to PBF directly. If PBF pays any costs or expenses incurred in relation to any import duties, customs, formalities, permissions or other requirements, then Customer shall promptly reimburse PBF for all such amounts in full.
- Third Party Components
In order to properly utilize the Subscription Services, Customer agrees it may require use of certain third party components, which if any shall be listed in the Order Form (“Third Party Components”). Customer acknowledges that PBF will have no responsibility for the implementation or operation of such Third Party Components.
Additional User Conduct Guidelines
PBF requests that the User not impede or inhibit any other User from using and enjoying the Services. Therefore, in using the Services, you agree not to: disrupt or interfere with the security of, or otherwise abuse, the Services, system resources, accounts, servers or networks connected to or accessible through the Services or affiliate linked websites/services; upload, post, or otherwise transmit through or on the Services any viruses or other harmful, disruptive or destructive files; use or attempt to use another's account, service or system, or link to another site, without authorization from PBF, or create or use a false identity on the Services; or transmit through or on the Services spam, chain letters, junk mail or other types of unsolicited mass e-mail to people or entities who have not agreed to be part of such mailings.
PBF reserves the right to remove any content that it in its sole discretion believes is infringing, defamatory, illegal or offensive, or otherwise as may be permitted under the Digital Millennium Copyright Act or other applicable law. Further, any unauthorized or prohibited use may additionally subject the offender to civil liability and criminal prosecution under applicable federal and provincial laws.
USER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT USER'S SOLE RISK. NEITHER PBF, ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS, SERVICE PROVIDERS, THIRD PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY, RELIABILITY, SECURITY OR CONTENT OF ANY INFORMATION OR SERVICE CONTAINED IN OR PROVIDED THROUGH THE SERVICES.
THE SERVICES, ALL CONTENT AND INFORMATION PROVIDED THEREIN, AND ALL DOWNLOADABLE SOFTWARE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, AND ALL SUCH WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXPRESSLY NEGATED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY PBF, ANY OF ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS OR ANY SERVICE PROVIDERS, THIRD PARTY INFORMATION PROVIDERS; LICENSORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE. USER HEREBY ACKNOWLEDGES THAT PBF IS NOT RESPONSIBLE FOR ANY INTERCEPTED INFORMATION SENT VIA THE INTERNET, AND USER RELEASES PBF FROM ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE USE OF INTERCEPTED INFORMATION IN ANY UNAUTHORIZED MANNER.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL PBF, ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS OR ANY THIRD PARTY INFORMATION PROVIDER, SERVICE PROVIDERS, LICENSOR, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, LOST PROFIT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES THAT RESULT FROM OR ARE RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT OR DESTRUCTION.
This Applies to Apps, Too
All of these Terms and Conditions apply to our apps, too. Use of our apps is also at your own risk. They are provided as a service to our members and guests without charge, and we disclaim any and all responsibility for them. We do not screen our users, so please use good judgment and common sense in deciding whom to meet or trust with your personal information. We do not provide contact details to other members through any of our apps and instead route all messages through us. If at any time you wish to stop receiving messages from another member through one of our apps, you can just “block” them. You can also report threats, abuse or any other inappropriate conduct by contacting firstname.lastname@example.org.
The User agrees to indemnify, defend and hold harmless, PBF, its parents, affiliates, employees, agents, third party information providers, service providers, licensors or the like and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Services from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms and Conditions by the User. PBF reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by User, in which event User will fully cooperate with PBF in asserting any available defenses.
Third Party Links and Sites
In order to identify third party sites or resources, the Services may make use of third party trademarks, images or branding. Usage of these items does not imply endorsement or certification by the third party. Logos and trademarks displayed within the Services are the property of their respective owners and are used in accordance with existing agreements between PBF and the third party or by usage guidelines and policies set forth by the third party.
Opt Out of Receiving Further Web Based Marketing
You can choose to be removed from our web-generated marketing lists at any time. Each unsolicited commercial email includes instructions for opting out of further e-mail marketing communications. In addition, you can opt out of PBF's marketing e-mail or print mail by sending an e-mail with "remove" in the subject line to email@example.com.
These Terms and Conditions of Use shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada. Users agree to submit to the personal and exclusive jurisdiction of the provincial or federal courts located within the Province of Ontario for any disputes arising from or related to the Services or these Terms and Conditions of Use. These Terms and Conditions are not intended to alter the terms or conditions of any other agreement you may have with PBF or its affiliates, parents, service providers or business associates to the extent that those agreements govern issues other than your use of the Services. Should any provision in these Terms and Conditions be found invalid or unenforceable for any reason, that provision shall be deemed severable from the terms and shall not affect validity or enforceability of the remaining provisions. These Terms and Conditions may not be altered by action, inaction or course of dealing between the parties. These Terms and Conditions may only be altered by (a) prior written mutual agreement between PBF and User; or (b) PBF posting revisions on the Services. Failure by PBF to object to a User's behavior, conduct or action does not constitute a consent, ratification or waiver of objection.