FITNESS, LIFE AND BALANCE, INC. (HEREINAFTER “FITLAB,” “WE,” “US,” OR “OUR”) INVITES YOU TO ACCESS AND USE OUR ONLINE SERVICES (THE “SERVICES”), WHICH ARE MADE AVAILABLE TO YOU THROUGH A VARIETY OF PLATFORMS, INCLUDING HTTP://WWW.FITLABPERFORMANCE.COM (THE “WEBSITE”) AND OUR MOBILE TRAINING AND NUTRITION APPS, WHICH ARE ACCESSIBLE THROUGH TABLETS, CELL PHONES, AND OTHER DEVICES (THE “APPS”). THE WEBSITE AND THE APPS ARE COLLECTIVELY REFERRED TO AS THE “PORTAL.”

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OUR PORTAL OR USING OUR SERVICES. BY ACCESSING OR USING ANY PART OF OUR SERVICES, YOU AGREE TO BECOME BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN YOU MAY NOT ACCESS OR USE ANY OF OUR SERVICES. IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY FITLAB, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

WE PROVIDE ACCESS TO OUR PORTAL TO REGISTERED USERS SUBJECT TO THE FOLLOWING TERMS OF USE, WHICH MAY BE ALTERED OR UPDATED BY US FROM TIME TO TIME WITHOUT NOTICE TO YOU. BY ACCESSING AND USING THE PORTAL AND OUR SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE, WITHOUT LIMITATION, TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THESE TERMS OF USE AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY, WHICH CAN BE ACCESSED HERE.

I.      SERVICES

FITLAB IS AN ONLINE FITNESS AND SPORTS PERFORMANCE COACHING PORTAL THAT ENABLES REGISTERED USERS TO IMPROVE THEIR FITNESS AND ATHLETIC PERFORMANCE THROUGH ONLINE COACHING, NUTRITION AND EXERCISE LOGGING, RECEIVING HEALTH AND FITNESS RELATED INFORMATION AND CONTENT AND ACCESSING SOCIAL NETWORKING ON OUR PORTAL.
USE OF OUR SERVICES REQUIRES A FITLAB ACCOUNT. YOU AGREE TO PROVIDE US WITH COMPLETE AND ACCURATE INFORMATION WHEN YOU REGISTER FOR AN ACCOUNT. YOU WILL BE SOLELY RESPONSIBLE AND LIABLE FOR ANY ACTIVITY THAT OCCURS UNDER YOUR USERNAME. YOU ARE RESPONSIBLE FOR KEEPING YOUR PASSWORD SECURE.
WE PROVIDE REGISTERED USERS WITH ACCESS TO THE PORTAL AS DESCRIBED IN THIS AGREEMENT.

REGISTERED USERS. ACCOUNT CREATION IS REQUIRED FOR ALL REGISTERED USERS, AND CAN ONLY BE UTILIZED VIA AN ACCESS CODE PROVIDED BY US. SUCH ACCESS CODE WILL ONLY BE PROVIDED UPON PAYMENT FOR SERVICES OR FOR PROMOTIONAL PURPOSES AT OUR DISCRETION.

REGISTERED USERS MAY: (A) PURCHASE PRODUCTS AND SERVICES, (B) SIGN UP FOR ALERTS AND OTHER NOTIFICATIONS; (C) POST COMMENTS, REVIEWS, AND OTHER CONTENT (“USER CONTENT”); (D) PURCHASE, RECEIVE AND ACCESS PERSONAL TRAINING AND SPORT PERFORMANCE COACHING PROGRAMS DESIGNED BY US AND OTHER COACHES AND PERSONAL TRAINERS; AND (E) TRACK THEIR OWN BODY METRICS, PERFORMANCE METRICS, TRAINING TYPE AND FREQUENCY AND NUTRITION DIARIES.

WE ARE UNDER NO OBLIGATION TO ACCEPT ANY INDIVIDUAL AS A REGISTERED USER, AND MAY ACCEPT OR REJECT ANY REGISTERED USER IN OUR SOLE AND COMPLETE DISCRETION.

II.     ELIGIBILITY

OUR SERVICES ARE NOT DIRECTED TO CHILDREN YOUNGER THAN 13, AND ACCESS AND USE OF OUR SERVICES IS ONLY OFFERED TO USERS 13 YEARS OF AGE OR OLDER. IF YOU ARE UNDER 13 YEARS OLD, PLEASE DO NOT REGISTER TO USE OUR SERVICES. ANY PERSON WHO REGISTERS AS A USER OR PROVIDES THEIR PERSONAL INFORMATION TO OUR SERVICES REPRESENTS THAT THEY ARE 13 YEARS OF AGE OR OLDER.

III.    DISCLAIMER

THROUGH OUR SERVICES AND THE USE OF THE PORTAL, WE PROVIDE USERS WITH INFORMATION ON HOW TO IMPROVE ATHLETIC PERFORMANCE, OVERALL FITNESS AND NUTRITION, HOWEVER, WE ARE NOT A MEDICAL ORGANIZATION, CANNOT AND DO NOT PROVIDE EXERCISE OR NUTRITION PRESCRIPTIONS. THE INFORMATION WHICH WE PROVIDE INCLUDING WORKOUT PLANS AND EXERCISES, EVEN IF TAILORED TO INDIVIDUAL REGISTERED USERS, SHOULD NOT BE MISCONSTRUED AS MEDICAL ADVICE, DIAGNOSES, PRESCRIPTION OR TREATMENT.  YOU SHOULD NOT RELY ON THIS INFORMATION AS A SUBSTITUTE FOR, NOR DOES IT REPLACE, PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.

YOU SHOULD CONSULT A PHYSICIAN BEFORE BEGINNING A NEW FITNESS OR NUTRITIONAL PROGRAM. IF YOU HAVE ANY CONCERNS OR QUESTIONS ABOUT YOUR HEALTH, YOU SHOULD ALWAYS CONSULT WITH A PHYSICIAN OR OTHER HEALTHCARE PROFESSIONAL. THE USE OF ANY INFORMATION OR PROGRAMS PROVIDED ON THROUGH THE PORTAL IS SOLELY AT YOUR OWN RISK.
THE EXERCISE PROGRAMS AND SERVICES OFFERED THROUGH THE PORTAL ARE INTENDED FOR USE ONLY BY INDIVIDUALS HEALTHY ENOUGH TO PERFORM STRENUOUS EXERCISE. IN BECOMING A REGISTERED USER OF THE PORTAL, YOU AFFIRM THAT A PHYSICIAN HAS SPECIFICALLY APPROVED YOUR USE OF THE PORTAL, OR THAT ALL OF THE FOLLOWING STATEMENTS ARE TRUE:

NO PHYSICIAN HAS EVER INFORMED YOU THAT YOU HAVE A HEART CONDITION OR THAT YOU SHOULD ONLY DO PHYSICAL ACTIVITIES RECOMMENDED BY A PHYSICIAN;
YOU HAVE NEVER FELT CHEST PAIN WHEN ENGAGING IN PHYSICAL ACTIVITY;
YOU HAVE NOT EXPERIENCED CHEST PAIN WHEN NOT ENGAGED IN PHYSICAL ACTIVITY AT ANY TIME WITHIN THE PAST MONTH;
YOU HAVE NEVER LOST YOUR BALANCE BECAUSE OF DIZZINESS AND YOU HAVE NEVER LOST CONSCIOUSNESS;
YOU DO NOT HAVE A BONE OR JOINT PROBLEM THAT COULD BE MADE WORSE BY A CHANGE IN YOUR PHYSICAL ACTIVITY;
YOUR PHYSICIAN IS NOT CURRENTLY PRESCRIBING DRUGS FOR YOUR BLOOD PRESSURE OR HEART CONDITION;
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;
YOU DO NOT HAVE A CONDITION OF HIGH-CHOLESTEROL, DIABETES, OBESITY OR ARTHRITIS; AND
YOU DO NOT KNOW OF ANY OTHER REASON YOU SHOULD NOT EXERCISE.

IF APPLICABLE, YOU FURTHER AFFIRM THAT (A) YOU ARE NOT PREGNANT, BREASTFEEDING OR LACTATING, OR (B) YOUR PHYSICIAN HAS SPECIFICALLY APPROVED YOUR USE OF THE SERVICES.
IF YOU FEEL ANY OF THE PHYSICAL SYMPTOMS LISTED ABOVE WHEN YOU START YOUR EXERCISE PROGRAM, YOU SHOULD CEASE UTILIZING THE SERVICES AND PORTAL AND CONTACT YOUR PHYSICIAN IMMEDIATELY. WE RESERVE THE RIGHT TO DENY YOU ACCESS TO THE SERVICES FOR ANY REASON OR NO REASON, INCLUDING IF WE DETERMINE, IN OUR SOLE DISCRETION, THAT YOU HAVE CERTAIN MEDICAL CONDITIONS.
THERE ARE INHERENT PHYSICAL AND MENTAL HEALTH RISKS TO EXERCISE, INCLUDING RISK OF INJURY, ILLNESS AND DEATH. BY ACCESSING THE SERVICES AND THE PORTAL, YOU ACKNOWLEDGE AND AGREE THAT YOUR PERFORMANCE OF ANY AND ALL EXERCISES OR ACTIVITIES RECOMMENDED BY THE SERVICES IS WHOLLY AT YOUR OWN RISK. NEITHER FITLAB NOR ANY OF ITS COACHES WILL BE LIABLE FOR ANY PHYSICAL OR MENTAL INJURY OR ILLNESS THAT MAY RESULT, WHETHER DIRECTLY OR INDIRECTLY, FROM ANY WORKOUT PLANS OR EXERCISES AVAILABLE THROUGH THE PORTAL. WHILE WE MAY PROVIDE INFORMATION SUCH AS WRITTEN DESCRIPTIONS, PICTURES, OR VIDEOS DESCRIBING HOW TO PERFORM SPECIFIC EXERCISES OR ACTIVITIES, YOU ASSUME SOLE RESPONSIBILITY FOR PERFORMING THOSE EXERCISES OR ACTIVITIES WITH PROPER FORM. WE ENCOURAGE YOU TO CONTACT US DIRECTLY AND ARRANGE FOR AN IN-PERSON OR LIVE VIDEO SESSION IF YOU HAVE ANY QUESTIONS REGARDING PROPER FORM OR ARE NEW TO SPECIFIC EXERCISES, HOWEVER, THE OCCURRENCE OF ANY SUCH SESSION NOTWITHSTANDING, YOUR PERFORMANCE OF ANY AND ALL EXERCISES AND MOVEMENTS INCLUDED WITH THE SERVICES THROUGH THE PORTAL REMAIN AT YOUR OWN RISK.

IV.    WAIVER AND RELEASE

YOU HEREBY ACKNOWLEDGE, AGREE AND UNDERSTAND THAT THERE ARE SIGNIFICANT RISKS (SOME KNOWN AND OTHERS UNKNOWN OR UNFORESEEABLE) ASSOCIATED WITH PARTICIPATION IN ANY STRENGTH AND CONDITIONING, FITNESS OR EXERCISE PROGRAM, INCLUDING THOSE WHICH ARE AVAILABLE THROUGH OUR PORTAL. THESE RISKS INCLUDE THE POSSIBILITY OF VERY SERIOUS INJURIES OR EVEN DEATH WHICH CAN OCCUR FOR A VARIETY OF REASONS AND UNDER A VARIETY OF CIRCUMSTANCES RELATED TO PARTICIPATION IN FITNESS, EXERCISE OR STRENGTH AND CONDITIONING PROGRAMS. SUCH RISKS INCLUDE, BUT ARE NOT LIMITED TO, THE RISKS OF INJURY; DISABILITY; PARALYSIS OR EVEN DEATH RESULTING FROM CAUSES INCLUDING, WITHOUT LIMITATION, THE PHYSICAL CONDITION AND HEALTH (KNOWN OR UNKNOWN) OF THE PARTICIPANT; FIELD/COURT/TRAINING FACILITY/GYMNASIUM/PRACTICE AREA CONDITIONS; ACTIONS OF OTHER PARTICIPANTS; WEATHER; IMPROPER TECHNIQUES IN EXECUTING THE SKILLS TO PARTICIPATE IN THE PROGRAMS PROVIDED THROUGH THE PORTAL; HAZARDS INHERENT IN A STRENGTH AND CONDITIONING OR FITNESS PROGRAM INVOLVING WEIGHT LIFTING OR CARDIOVASCULAR TRAINING; IMPROPER OR MALFUNCTIONING EQUIPMENT; AND/OR IMPROPER OR INADEQUATE TRAINING OR COACHING.

RELEASE – READ CAREFULLY: REALIZING THAT THERE ARE RISKS INHERENT IN ANY STRENGTH AND CONDITIONING OR FITNESS PROGRAM(S), AND IN CONSIDERATION OF BEING ALLOWED TO UTILIZE THE SERVICES AND THE PORTAL DESIGNED AND/OR OPERATED BY FITLAB, YOU HEREBY ACKNOWLEDGE, ON BEHALF OF YOURSELF, YOUR HEIRS, EXECUTORS, SUCCESSORS AND ASSIGNS, AND HEREBY AGREE TO: HOLD HARMLESS AND RELEASE SHELLEY J. MURRAY AND FITLAB., ITS COACHES, EMPLOYEES, AGENTS, LICENSORS AND OWNERS (“RELEASEES”) FROM ANY LIABILITY, CLAIMS AND/OR DAMAGES NOW OR IN THE FUTURE FOR ANY INJURY WHICH YOU MAY SUSTAIN STEMMING FROM OR RELATED TO YOUR PARTICIPATION IN ANY PROGRAM OR USE OF ANY SERVICES OR THE PORTAL; AND, INDEMNIFY, HOLD HARMLESS AND DEFEND RELEASEES FROM AND AGAINST ALL CLAIMS, CAUSES OF ACTION, DAMAGES, JUDGMENTS, COSTS OR EXPENSES, INCLUDING ATTORNEY FEES AND OTHER LITIGATION COSTS WHICH MAY IN ANY WAY ARISE FROM YOUR PARTICIPATION IN ANY PROGRAM OFFERED THROUGH THE PORTAL. YOU EXPRESSLY AGREE THAT THIS WAIVER IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY THE LAWS OF THE STATE OF FLORIDA AND THAT IF ANY PORTION OF THIS WAIVER IS HELD BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID OR UNENFORCEABLE, THAT THE BALANCE OF THE WAIVER SHALL, NOTWITHSTANDING, CONTINUE IN FULL FORCE AND EFFECT.

YOU HEREBY EXPRESSLY AGREE THAT YOU HAVE READ THIS WAIVER AND RELEASE OF LIABILITY AND, AS EVIDENCED BY YOUR REGISTRATION OF AN ACCOUNT ON THE PORTAL, AGREE TO THE TERMS HEREIN. YOU HEREBY AGREE THAT YOU HAVE READ THIS PARTICIPATION, ASSUMPTION OF RISK, WAIVER AND RELEASE OF LIABILITY, AND INDEMNIFICATION AGREEMENT; FULLY UNDERSTAND ITS TERMS; UNDERSTAND THAT YOU MAY HAVE GIVEN UP SUBSTANTIAL RIGHTS BY AGREEING TO IT IN EXCHANGE FOR BEING ALLOWED TO REGISTER ON THE PORTAL AND UTILIZE THE SERVICES; AND HAVE AGREED TO IT FREELY AND VOLUNTARILY WITHOUT ANY INDUCEMENT (OTHER THAN THE OPPORTUNITY TO ACCESS THE SERVICES OFFERED AND UTILIZE THE PORTAL), ASSURANCE OR GUARANTEE BEING MADE TO YOU. YOU HEREBY EXPRESSLY AGREE THAT YOU INTEND YOUR REGISTRATION ON THE PORTAL TO AFFECT A COMPLETE AND UNCONDITIONAL RELEASE AND WAIVER OF ALL LIABILITY, INCLUDING ANY NEGLIGENCE OF THE RELEASEES IDENTIFIED IN THIS AGREEMENT, AND TO INDEMNIFY THE RELEASEES, TO THE GREATEST EXTENT ALLOWED BY LAW.

YOU ACKNOWLEDGE AND ARE MADE FULLY AWARE THAT NEITHER FITLAB NOR THE COACHES ON OUR PORTAL ARE MEDICAL DOCTORS, LICENSED NUTRITIONISTS, OR REGISTERED DIETICIANS AND THAT FITLAB AND THE COACHES ON OUR PORTAL ARE ONLY PROVIDING INFORMATION TO YOU. YOU ACKNOWLEDGE BEFORE BEGINNING, IMPLEMENTING, OR USING ANY AND ALL OF INFORMATION PROVIDED, THAT YOU SHOULD CONSULT A MEDICAL DOCTOR OR AGREE THAT YOU HAVE DONE SO AND HAVE BEEN MEDICALLY APPROVED TO PARTICIATE IN THE SERVICES THROUGH THE PORTAL.

V. PAYMENTS AND BILLING

OUR SERVICES MAY BE SUBJECT TO PAYMENT AT ANY TIME.  PLEASE NOTE THAT ANY PAYMENT TERMS PRESENTED TO YOU IN THE PROCESS OF USING A SERVICE OR REGISTERING AN ACCOUNT FOR USE WITH THE PORTAL ARE DEEMED PART OF THIS AGREEMENT, REGARDLESS OF THE MANNER OF REGISTRATION FOR YOUR ACCOUNT. PAYMENTS WILL BE CHARGED ON A PRE-PAY BASIS ON THE DAY YOU SIGN UP FOR OUR SERVICE AND WILL COVER THE USE OF THAT SERVICE FOR A MONTHLY OR ANNUAL SUBSCRIPTION PERIOD AS INDICATED.

YOU AGREE THAT FITLAB MAY IMMEDIATELY AUTHORIZE YOUR CREDIT CARD (OR OTHER APPROVED PAYMENT METHOD) FOR PAYMENT FOR ANY SERVICES OR PRODUCTS MADE UNDER YOUR ACCOUNT ON THE PORTAL. YOU ARE FULLY RESPONSIBLE FOR ALL ACTIVITIES THAT OCCUR THROUGH YOUR ACCOUNT, AND YOU AGREE TO BE LIABLE FOR ALL CHARGES INCURRED ON BEHALF OF OR THROUGH YOUR ACCOUNT. YOUR LIABILITY FOR SUCH CHARGES SHALL CONTINUE AFTER TERMINATION OF THIS AGREEMENT. IF YOU HAVE A QUESTION ABOUT A TRANSACTION ON YOUR CREDIT CARD STATEMENT, PLEASE USE THE “CONTACT US” SECTION OF THE PORTAL TO CONTACT CUSTOMER SERVICE.

FOR ANY PURCHASES EXECUTED OUTSIDE THE PORTAL (E.G., THROUGH AMAZON, ITUNES, GOOGLE PLAY, ETC.), THE TERMS AND CONDITIONS AND PRIVACY POLICY OF SUCH THIRD-PARTY PROVIDER SHALL APPLY TO SUCH PURCHASE.

BILLING: WE USE A THIRD-PARTY PAYMENT PROCESSOR (THE “PAYMENT PROCESSOR”) TO BILL YOU THROUGH A PAYMENT ACCOUNT (YOUR “BILLING ACCOUNT”) FOR USE OF THE SERVICES. THE PROCESSING OF PAYMENTS WILL BE SUBJECT TO THE TERMS, CONDITIONS AND PRIVACY POLICIES OF THE PAYMENT PROCESSOR IN ADDITION TO THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY ERROR MADE BY THE PAYMENT PROCESSOR. BY CHOOSING TO USE THE SERVICES AND ACCESS THE PORTAL, YOU AGREE TO PAY US, THROUGH THE PAYMENT PROCESSOR, ALL CHARGES AT THE PRICES THEN IN EFFECT FOR ANY USE OF SUCH SERVICES AND THE PORTAL IN ACCORDANCE WITH THE APPLICABLE PAYMENT TERMS AND YOU AUTHORIZE US, THROUGH THE PAYMENT PROCESSOR, TO CHARGE YOUR CHOSEN PAYMENT PROVIDER (YOUR “PAYMENT METHOD”). YOU AGREE TO MAKE PAYMENT USING THAT SELECTED PAYMENT METHOD.

WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR MISTAKES MADE BY THE PAYMENT PROCESSOR EVEN IF IT HAS ALREADY REQUESTED OR RECEIVED PAYMENT.

PAYMENT METHOD: THE TERMS OF YOUR PAYMENT WILL BE BASED ON YOUR PAYMENT METHOD AND MAY BE DETERMINED BY AGREEMENTS BETWEEN YOU AND THE FINANCIAL INSTITUTION, CREDIT CARD ISSUER OR OTHER PROVIDER OF YOUR CHOSEN PAYMENT METHOD.

IF WE, THROUGH THE PAYMENT PROCESSOR, DO NOT RECEIVE PAYMENT FROM YOU, YOU AGREE TO PAY ALL AMOUNTS DUE ON YOUR BILLING ACCOUNT UPON DEMAND.

RECURRING BILLING: SOME OF THE SERVICES MAY CONSIST OF AN INITIAL PERIOD, FOR WHICH THERE IS A ONE-TIME CHARGE, FOLLOWED BY RECURRING PERIOD CHARGES AS AGREED TO BY YOU. BY CHOOSING ANY RECURRING PAYMENT PLAN, (EVEN THOSE WHICH DO NOT CONSIST OF AN INITIAL PERIOD) YOU ACKNOWLEDGE THAT SUCH SERVICES HAVE A RECURRING PAYMENT FEATURE AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO CANCELLATION.

UNLESS YOU NOTIFY FITLAB BEFORE THE END OF THE APPLICABLE SUBSCRIPTION PERIOD THAT YOU WANT TO CANCEL A SERVICE, YOUR SERVICE SUBSCRIPTION WILL AUTOMATICALLY RENEW AND YOU AUTHORIZE US TO COLLECT THE THEN-APPLICABLE ANNUAL OR MONTHLY SUBSCRIPTION FEE FOR SUCH SERVICE (AS WELL AS ANY TAXES) USING ANY CREDIT CARD OR OTHER PAYMENT MECHANISM WE HAVE ON RECORD FOR YOU.

YOUR NON-TERMINATION OR CONTINUED USE OF A SERVICE REAFFIRMS THAT WE ARE AUTHORIZED TO CHARGE YOUR PAYMENT METHOD FOR THAT SERVICE. WE MAY SUBMIT THOSE CHARGES FOR PAYMENT AND YOU WILL BE RESPONSIBLE FOR SUCH CHARGES. THIS DOES NOT WAIVE OUR RIGHT TO SEEK PAYMENT DIRECTLY FROM YOU. YOUR CHARGES MAY BE PAYABLE IN ADVANCE, IN ARREARS, PER USAGE, OR AS OTHERWISE DESCRIBED WHEN YOU INITIALLY SELECTED TO USE THE SERVICE.

IF YOU NEED TO CANCEL YOUR SERVICE SUBSCRIPTION FOR WHATEVER REASON, IT IS YOUR SOLE RESPONSIBILITY TO CANCEL THAT SERVICE SUBSCRIPTION YOURSELF BY CANCELING THROUGH OUR PAYMENT PROCESSOR OR, IF YOUR SERVICE SUBSCRIPTION WAS PURCHASED THROUGH AMAZON SUBSCRIPTION SERVICE BY CANCELLING THROUGH AMAZON. VERBAL DISCUSSION AND ACKNOWLEDGEMENT OF DESIRE TO CANCEL DOES NOT QUALIFY AS A CANCELLATION.

V.     PORTAL USAGE GUIDELINES

BY ACCESSING AND/OR USING THE PORTAL, YOU HEREBY AGREE TO COMPLY WITH THESE GUIDELINES (THE “PORTAL GUIDELINES”) AND THAT:

YOU WILL NOT USE THE PORTAL FOR ANY UNLAWFUL PURPOSE;

YOU WILL NOT POST ANY LEWD, OFFENSIVE OR PORNOGRAPHIC MATERIAL; INCLUDING BUT NOT LIMITED TO MATERIAL WHICH DISPARAGES ANOTHER REGISTERED USER OR ANY GROUP BASED ON ETHNICITY, RACE, RELIGION, GENDER, SEXUAL ORIENTATION, NATIONALITY, POLITICAL AFFILIATION, MATERIAL WHICH CONTAINS NUDITY OR PARTIAL NUDITY, OR INFORMATION WHICH COULD BE CONSIDERED “HATE SPEECH”; NOR WILL YOU SEND ANY SUCH MATERIAL TO ANY OTHER REGISTERED USER;

YOU WILL NOT USE THE PORTAL TO ENGAGE IN ANY COMMERCIAL ACTIVITIES, INCLUDING, WITHOUT LIMITATION, RAISING MONEY; ADVERTISING OR PROMOTING A PRODUCT, SERVICE, OR COMPANY; OR ENGAGING IN ANY PYRAMID OR OTHER MULTI-TIERED MARKETING SCHEME;

YOU WILL NOT ACCESS OR USE THE PORTAL TO COLLECT ANY MARKET RESEARCH FOR A COMPETING BUSINESS;

YOU WILL NOT UPLOAD, POST, E-MAIL, TRANSMIT, OR OTHERWISE MAKE AVAILABLE ANY USER CONTENT THAT: INFRINGES ANY COPYRIGHT, TRADEMARK, RIGHT OF PUBLICITY, OR OTHER PROPRIETARY OR CONTRACTUAL RIGHTS OF ANY PERSON OR ENTITY; OR IS THREATENING, TORTIOUS, DEFAMATORY, LIBELOUS, INDECENT, OBSCENE, PORNOGRAPHIC, INVASIVE OF ANOTHER’S PRIVACY, OR PROMOTES VIOLENCE; OR DISCLOSES ANY SENSITIVE INFORMATION ABOUT ANOTHER PERSON, INCLUDING THAT PERSON’S E-MAIL ADDRESS, POSTAL ADDRESS, PHONE NUMBER, CREDIT CARD INFORMATION, OR ANY SIMILAR INFORMATION;

YOU WILL NOT COVER, OBSCURE, BLOCK, OR IN ANY WAY INTERFERE WITH ANY ADVERTISEMENTS AND/OR SAFETY FEATURES (E.G., REPORT ABUSE BUTTON) ON THE PORTAL;

YOU WILL NOT TAKE ANY ACTION THAT IMPOSES OR MAY IMPOSE (IN OUR SOLE DISCRETION) AN UNREASONABLE OR DISPROPORTIONATELY LARGE LOAD ON OUR TECHNICAL INFRASTRUCTURE;

YOU WILL NOT USE AUTOMATED MEANS, INCLUDING SPIDERS, ROBOTS, CRAWLERS, DATA MINING TOOLS, OR THE LIKE TO DOWNLOAD OR SCRAPE DATA FROM THE PORTAL, EXCEPT FOR INTERNET SEARCH ENGINES (E.G., GOOGLE) AND NON-COMMERCIAL PUBLIC ARCHIVES (E.G., ARCHIVE.ORG) THAT COMPLY WITH OUR ROBOTS.TXT FILE;

YOU WILL NOT USE ANY AUTOMATED DEVICE OR SOFTWARE THAT ENABLES THE SUBMISSION OF AUTOMATIC POSTINGS ON THE PORTAL WITHOUT HUMAN INTERVENTION OR AUTHORSHIP, INCLUDING, WITHOUT LIMITATION, THE USE OF ANY SUCH AUTOMATED POSTING DEVICE IN CONNECTION WITH BULK POSTINGS OR FOR AUTOMATIC SUBMISSION OF POSTINGS AT CERTAIN TIMES OR INTERVALS; AND

YOU WILL NOT INTERFERE WITH OR ATTEMPT TO INTERRUPT THE PROPER OPERATION OF THE PORTAL THROUGH THE USE OF ANY VIRUS, DEVICE, INFORMATION COLLECTION OR TRANSMISSION MECHANISM, SOFTWARE OR ROUTINE, OR ACCESS OR ATTEMPT TO GAIN ACCESS TO ANY DATA, FILES, OR PASSWORDS RELATED TO THE PORTAL THROUGH HACKING, PASSWORD OR DATA MINING, OR ANY OTHER MEANS.

VI. LOGIN AND PASSWORD INFORMATION

DURING THE REGISTRATION PROCESS FOR REGISTERED USERS, IF YOU DO NOT SIGN IN VIA A THIRD PARTY PROVIDER, WE WILL ASK YOU TO CREATE AN ACCOUNT, WHICH INCLUDES A USER NAME, A PASSWORD (“PASSWORD”), AND PERHAPS CERTAIN ADDITIONAL INFORMATION THAT WILL ASSIST IN AUTHENTICATING YOUR IDENTITY WHEN YOU LOG-IN IN THE FUTURE (“UNIQUE IDENTIFIERS”). WHEN CREATING YOUR ACCOUNT, YOU MUST PROVIDE TRUE, ACCURATE, CURRENT, AND COMPLETE INFORMATION AND YOU MUST KEEP YOUR ACCOUNT INFORMATION UPDATED AT ALL TIMES. FAILURE TO DO SO SHALL CONSTITUTE A BREACH OF THESE TERMS OF USE, WHICH MAY RESULT IN IMMEDIATE TERMINATION OF YOUR ACCOUNT.

EACH USER NAME AND CORRESPONDING PASSWORD CAN BE USED BY ONLY ONE REGISTERED USER. YOU ARE SOLELY RESPONSIBLE FOR THE CONFIDENTIALITY AND USE OF YOUR USER NAME, PASSWORD, AND UNIQUE IDENTIFIERS, AS WELL AS FOR ANY USE, MISUSE, OR COMMUNICATIONS ENTERED THROUGH THE PORTAL USING ONE OR MORE OF THEM. YOU WILL PROMPTLY INFORM US OF ANY NEED TO DEACTIVATE A PASSWORD OR USER NAME, OR CHANGE ANY UNIQUE IDENTIFIER. WE RESERVE THE RIGHT TO DELETE OR CHANGE YOUR PASSWORD, USER NAME, OR UNIQUE IDENTIFIER AT ANY TIME AND FOR ANY REASON. FITLAB WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY ANY UNAUTHORIZED USE OF YOUR ACCOUNT.

BY ACCESSING THE PORTAL USING YOUR AMAZON CREDENTIALS OR ANY OTHER THIRD PARTY SERVICES, YOU PERMIT US TO ACCESS CERTAIN INFORMATION FROM YOUR PROFILE ON ANY SUCH THIRD PARTY SERVICES FOR USE BY THE PORTAL.  YOU MAY BE ABLE TO CONTROL THE AMOUNT OF INFORMATION THAT IS ACCESSIBLE TO US BY ADJUSTING YOUR ACCOUNT PRIVACY SETTINGS ON ANY SUCH THIRD PARTY SERVICES.  BY USING THE PORTAL, YOU ARE AUTHORIZING US TO COLLECT, STORE, RETAIN, AND USE INDEFINITELY, IN ACCORDANCE WITH OUR PRIVACY POLICY, ANY AND ALL INFORMATION THAT YOU PERMITTED ANY SUCH THIRD PARTY SERVICES TO PROVIDE TO US.

VII. INTELLECTUAL PROPERTY

THE PORTAL CONTAINS MATERIAL, SUCH AS DATA, SOFTWARE, TEXT, GRAPHICS, IMAGES, SOUND RECORDINGS, VIDEOS, AND OTHER MATERIAL PROVIDED BY OR ON BEHALF OF FITLAB (COLLECTIVELY REFERRED TO AS THE “CONTENT”). THE CONTENT MAY BE OWNED BY US OR BY THIRD PARTIES. THE CONTENT IS PROTECTED UNDER BOTH UNITED STATES AND FOREIGN LAWS. UNAUTHORIZED USE OF THE CONTENT MAY VIOLATE COPYRIGHT, TRADEMARK, AND OTHER LAWS.

IF YOU VIOLATE ANY PART OF THIS AGREEMENT, YOUR PERMISSION TO ACCESS AND/OR USE THE CONTENT, THE PORTAL, AND OUR SERVICES AUTOMATICALLY CEASES AND YOU MUST IMMEDIATELY DESTROY ANY COPIES YOU HAVE MADE OF THE CONTENT.

ALL CONTENT ADDED, CREATED, UPLOADED, SUBMITTED, DISTRIBUTED, OR POSTED TO THE SERVICES BY USERS (COLLECTIVELY “USER CONTENT”), WHETHER PUBLICLY POSTED OR PRIVATELY TRANSMITTED, IS THE SOLE RESPONSIBILITY OF THE PERSON WHO ORIGINATED SUCH USER CONTENT. YOU ACKNOWLEDGE THAT ALL CONTENT, INCLUDING USER CONTENT, ACCESSED BY YOU USING THE SERVICES IS AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS TO YOU OR ANY OTHER PARTY RESULTING THEREFROM. WE DO NOT GUARANTEE THAT ANY CONTENT YOU ACCESS ON OR THROUGH THE SERVICES IS OR WILL CONTINUE TO BE ACCURATE.

YOU ARE ENTIRELY RESPONSIBLE FOR THE CONTENT OF, AND ANY HARM RESULTING FROM, ANY USER CONTENT THAT YOU POST. THAT IS THE CASE REGARDLESS OF WHAT FORM THE CONTENT TAKES, WHICH INCLUDES, BUT IS NOT LIMITED TO TEXT, PHOTO, VIDEO OR AUDIO. BY USING OUR SERVICES AND THE PORTAL, YOU REPRESENT AND WARRANT THAT YOUR USER CONTENT AND CONDUCT DO NOT VIOLATE THESE TERMS OR THE PORTAL GUIDELINES. BY SUBMITTING CONTENT TO FITLAB FOR INCLUSION ON THE PORTAL, YOU GRANT FITLAB A WORLD-WIDE, ROYALTY-FREE, NON-EXCLUSIVE, FULLY PAID, SUBLICENSABLE AND TRANSFERABLE LICENSE TO USE, EDIT, MODIFY, TRUNCATE, AGGREGATE, REPRODUCE, DISTRIBUTE, PREPARE DERIVATIVE WORKS OF, DISPLAY, PERFORM, AND OTHERWISE FULLY EXPLOIT THE USER CONTENT IN CONNECTION WITH THE APPLICATIONS, THE WEBSITE, THE SERVICES AND OUR (AND OUR SUCCESSORS’ AND ASSIGNS’) BUSINESSES, INCLUDING WITHOUT LIMITATION FOR PROMOTING AND REDISTRIBUTING PART OR ALL OF THE APPLICATIONS, THE SITE OR THE SERVICES (AND DERIVATIVE WORKS THEREOF) IN ANY MEDIA FORMATS AND THROUGH ANY MEDIA CHANNELS (INCLUDING, WITHOUT LIMITATION, THIRD PARTY WEBSITES AND FEEDS), AND INCLUDING AFTER YOUR TERMINATION OF YOUR ACCOUNT OR THE SERVICES. YOU ALSO HEREBY DO AND SHALL GRANT EACH USER OF THE APPLICATIONS, WEBSITE AND/OR THE SERVICES WHO HAS ACCESS TO YOUR USER CONTENT A NON-EXCLUSIVE, PERPETUAL LICENSE TO USE, EDIT, MODIFY, REPRODUCE, DISTRIBUTE, PREPARE DERIVATIVE WORKS OF, DISPLAY AND PERFORM SUCH USER CONTENT, INCLUDING AFTER YOUR TERMINATION OF YOUR ACCOUNT OR THE SERVICES.  IF YOU DELETE CONTENT, FITLAB WILL USE REASONABLE EFFORTS TO REMOVE IT FROM THE PORTAL, BUT YOU ACKNOWLEDGE THAT CACHING OR REFERENCES TO THE CONTENT MAY NOT BE MADE IMMEDIATELY UNAVAILABLE.

IF YOU SUBMIT USER CONTENT TO US, EACH SUCH SUBMISSION CONSTITUTES A REPRESENTATION AND WARRANTY THAT SUCH USER CONTENT IS YOUR ORIGINAL CREATION (OR THAT YOU OTHERWISE HAVE THE RIGHT TO PROVIDE THE USER CONTENT), THAT YOU HAVE THE RIGHTS NECESSARY TO GRANT THE LICENSE TO THE USER CONTENT UNDER THIS SECTION, AND THAT IT AND ITS USE BY FITLAB AND ITS CONTENT PARTNERS AS PERMITTED BY THIS AGREEMENT DOES NOT AND WILL NOT INFRINGE OR MISAPPROPRIATE THE INTELLECTUAL PROPERTY OR MORAL RIGHTS OF ANY PERSON OR CONTAIN ANY LIBELOUS, DEFAMATORY, OR OBSCENE MATERIAL OR CONTENT THAT VIOLATES OUR PORTAL GUIDELINES.

WE DO NOT GUARANTEE THAT ANY CONTENT WILL BE MADE AVAILABLE ON THE APPLICATIONS OR THE WEBSITE OR THROUGH THE SERVICES. WE RESERVE THE RIGHT TO, BUT DO NOT HAVE ANY OBLIGATION TO, (I) REMOVE, EDIT OR MODIFY ANY CONTENT IN OUR SOLE DISCRETION, AT ANY TIME, WITHOUT NOTICE TO YOU AND FOR ANY REASON (INCLUDING, BUT NOT LIMITED TO, UPON RECEIPT OF CLAIMS OR ALLEGATIONS FROM THIRD PARTIES OR AUTHORITIES RELATING TO SUCH CONTENT OR IF WE ARE CONCERNED THAT YOU MAY HAVE VIOLATED THESE TERMS OF USE), OR FOR NO REASON AT ALL AND (II) TO REMOVE OR BLOCK ANY CONTENT FROM THE SERVICES.

THIS AGREEMENT DOES NOT TRANSFER FROM FITLAB TO YOU ANY FITLAB OR THIRD PARTY INTELLECTUAL PROPERTY, AND ALL RIGHT, TITLE, AND INTEREST IN AND TO SUCH PROPERTY WILL REMAIN (AS BETWEEN THE PARTIES) SOLELY WITH FITLAB. THE USE OR POSTING OF THE CONTENT ON ANY OTHER WEBSITE OR IN A NETWORKED COMPUTER ENVIRONMENT FOR ANY PURPOSE IS EXPRESSLY PROHIBITED. ALL FITLAB TRADEMARKS, SERVICE MARKS, GRAPHICS AND LOGOS USED IN CONNECTION WITH OUR SERVICES AND PORTAL, ARE TRADEMARKS OR REGISTERED TRADEMARKS OF FITLAB OR OUR LICENSORS. OTHER TRADEMARKS, SERVICE MARKS, GRAPHICS AND LOGOS USED IN CONNECTION WITH OUR SERVICES AND PORTAL MAY BE THE TRADEMARKS OF OTHER THIRD PARTIES. YOUR USE OF OUR SERVICES GRANTS YOU NO RIGHT OR LICENSE TO REPRODUCE OR OTHERWISE USE ANY FITLAB  OR THIRD-PARTY TRADEMARKS. ALL GOODWILL GENERATED FROM THE USE OF ALL TRADEMARKS INURES TO OUR BENEFIT.

ELEMENTS OF THE PORTAL ARE PROTECTED BY TRADE DRESS, TRADEMARK, UNFAIR COMPETITION, AND OTHER STATE AND FEDERAL LAWS AND MAY NOT BE COPIED OR IMITATED, IN WHOLE OR IN PART, BY ANY MEANS. NONE OF THE CONTENT MAY BE RETRANSMITTED WITHOUT OUR EXPRESS, WRITTEN CONSENT FOR EACH AND EVERY INSTANCE.

YOU SHALL NOT (DIRECTLY OR INDIRECTLY): (I) DECIPHER, DECOMPILE, DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DERIVE ANY SOURCE CODE OR UNDERLYING IDEAS OR ALGORITHMS OF ANY PART OF THE SERVICES OR PORTAL, EXCEPT TO THE LIMITED EXTENT APPLICABLE LAWS SPECIFICALLY PROHIBIT SUCH RESTRICTION, (II) MODIFY, TRANSLATE, OR OTHERWISE CREATE DERIVATIVE WORKS OF ANY PART OF THE SERVICES OR PORTAL, (III) COPY, RENT, LEASE, DISTRIBUTE, USE THE SERVICES OR PORTAL FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER ANY OF THE RIGHTS THAT YOU RECEIVE HEREUNDER, OR (IV) REMOVE OR OBSCURE ANY PROPRIETARY NOTICES ON THE PORTAL. YOU SHALL ABIDE BY ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS AND REGULATIONS.

WE RESERVE THE RIGHT TO ACCESS, READ, PRESERVE, AND DISCLOSE ANY INFORMATION AS WE REASONABLY BELIEVE IS NECESSARY TO (I) SATISFY ANY APPLICABLE LAW, REGULATION, LEGAL PROCESS OR GOVERNMENTAL REQUEST, (II) ENFORCE THESE TERMS OF USE, INCLUDING INVESTIGATION OF POTENTIAL VIOLATIONS HEREOF, (III) DETECT, PREVENT, OR OTHERWISE ADDRESS FRAUD, SECURITY OR TECHNICAL ISSUES, (IV) RESPOND TO USER SUPPORT REQUESTS, OR (V) PROTECT THE RIGHTS, PROPERTY OR SAFETY OF US, OUR USERS AND THE PUBLIC.

VII. WARRANTIES; LIMITATION OF LIABILITY

OUR SERVICES AND THE PORTAL ARE PROVIDED “AS IS.” FITLAB AND ITS SUPPLIERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NEITHER FITLAB NOR ITS SUPPLIERS AND LICENSORS, MAKES ANY WARRANTY THAT OUR SERVICES OR THE PORTAL WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED. YOU UNDERSTAND THAT YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH, OUR SERVICES AND THE PORTAL AT YOUR OWN DISCRETION AND RISK.

IN NO EVENT WILL FITLAB, OR ITS SUPPLIERS OR LICENSORS, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES; (III) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (IV) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO FITLAB UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. FITLAB SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

IX. EXTERNAL SITES

THE PORTAL MAY CONTAIN LINKS TO EXTERNAL SITES. WE ARE NOT RESPONSIBLE FOR ANY CONTENT CONTAINED ON EXTERNAL SITES, NOR FOR THE DELIVERY OF SAME. SHOULD YOU CHOOSE TO ACCESS ANY INFORMATION LOCATED ON AN EXTERNAL SITE LINKED THROUGH THE PORTAL, YOU DO SO AT YOUR OWN RISK.

X. INDEMNIFICATION

YOU AGREE TO INDEMNIFY AND HOLD HARMLESS FITLAB, ITS CONTRACTORS, AND ITS LICENSORS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS AND EXPENSES, INCLUDING ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF OUR SERVICES OR THE PORTAL, INCLUDING BUT NOT LIMITED TO YOUR VIOLATION OF THIS AGREEMENT. WE RESERVE THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER THAT IS SUBJECT TO INDEMNIFICATION UNDER THIS SECTION. IN SUCH CASE, YOU AGREE TO COOPERATE WITH ANY REASONABLE REQUESTS ASSISTING OUR DEFENSE OF SUCH MATTER.

XI. COMPLIANCE WITH APPLICABLE LAWS

FITLAB IS BASED IN THE UNITED STATES AND ITS SERVERS ARE LOCATED IN CANADA. WE MAKE NO CLAIMS CONCERNING WHETHER THE CONTENT MAY BE DOWNLOADED, VIEWED, OR BE APPROPRIATE FOR USE OUTSIDE OF THE UNITED STATES. IF YOU ACCESS THE PORTAL OR THE CONTENT FROM OUTSIDE OF THE UNITED STATES, YOU DO SO AT YOUR OWN RISK. WHETHER INSIDE OR OUTSIDE OF THE UNITED STATES, YOU ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE WITH THE LAWS OF YOUR SPECIFIC JURISDICTION.

XII. TERMINATION

WE MAY TERMINATE YOUR ACCESS TO ALL OR ANY PART OF THE SERVICES AND/OR THE PORTAL AT ANY TIME, WITH OR WITHOUT CAUSE, WITH OR WITHOUT NOTICE, EFFECTIVE IMMEDIATELY, WHICH MAY RESULT IN THE LOSS OF ALL INFORMATION ASSOCIATED WITH YOUR ACCOUNT. UPON TERMINATION, YOU AGREE THAT YOU SHALL NO LONGER ACCESS (OR ATTEMPT TO ACCESS) THE SERVICES OR THE PORTAL. IF YOU WISH TO TERMINATE YOUR ACCOUNT, YOU MAY DO SO BY CONTACTING US AT [email protected] .

ANY FEES PAID HEREUNDER ARE NON-REFUNDABLE, EXCEPT WHERE REQUIRED BY LAW.

WE ARE CONSTANTLY UPDATING OUR SERVICES AND THE PORTAL, AND THAT MEANS SOMETIMES WE HAVE TO CHANGE THE LEGAL TERMS UNDER WHICH OUR SERVICES ARE OFFERED. IF WE MAKE CHANGES THAT ARE MATERIAL, WE WILL LET YOU KNOW BY POSTING ON THE MAIN PORTAL FEED, OR BY SENDING YOU AN EMAIL OR OTHER COMMUNICATION BEFORE THE CHANGES TAKE EFFECT. THE NOTICE WILL DESIGNATE A REASONABLE PERIOD OF TIME AFTER WHICH THE NEW TERMS WILL TAKE EFFECT. IF YOU DISAGREE WITH OUR CHANGES, THEN YOU SHOULD STOP USING OUR SERVICES AND THE PORTAL WITHIN THE DESIGNATED NOTICE PERIOD. YOUR CONTINUED USE OF OUR SERVICES OR THE PORTAL WILL BE SUBJECT TO THE NEW TERMS. HOWEVER, ANY DISPUTE THAT AROSE BEFORE THE CHANGES SHALL BE GOVERNED BY THE TERMS THAT WERE IN PLACE WHEN THE DISPUTE AROSE.

XIII. DIGITAL MILLENNIUM COPYRIGHT ACT

AS FITLAB ASKS OTHERS TO RESPECT ITS INTELLECTUAL PROPERTY RIGHTS, IT RESPECTS THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS. IF YOU BELIEVE THAT MATERIAL LOCATED ON OR LINKED TO ON THE PORTAL VIOLATES YOUR COPYRIGHT, YOU ARE ENCOURAGED TO NOTIFY FITLAB IN ACCORDANCE WITH OUR DIGITAL MILLENNIUM COPYRIGHT ACT (“DMCA”) POLICY. WE WILL RESPOND TO ALL SUCH NOTICES, INCLUDING AS REQUIRED OR APPROPRIATE BY REMOVING THE INFRINGING MATERIAL OR DISABLING ALL LINKS TO THE INFRINGING MATERIAL. WE WILL TERMINATE A REGISTERED USER’S ACCESS TO AND USE OF THE WEBSITE IF, UNDER APPROPRIATE CIRCUMSTANCES, THE REGISTERED USER IS DETERMINED TO BE A REPEAT INFRINGER OF THE COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF FITLAB OR OTHERS. IN THE CASE OF SUCH TERMINATION, WE WILL HAVE NO OBLIGATION TO PROVIDE A REFUND OF ANY AMOUNTS PREVIOUSLY PAID TO US.

IF YOU BELIEVE THAT YOUR WORK HAS BEEN COPIED ON THE PORTAL IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT, PLEASE PROVIDE OUR AGENT WITH NOTICE IN ACCORDANCE WITH THE REQUIREMENTS OF THE ACT, INCLUDING: (I) A DESCRIPTION OF THE COPYRIGHTED WORK THAT HAS BEEN INFRINGED AND THE SPECIFIC LOCATION ON THE PORTAL WHERE SUCH WORK IS LOCATED; (II) A DESCRIPTION OF THE LOCATION OF THE ORIGINAL OR AN AUTHORIZED COPY OF THE COPYRIGHTED WORK; (III) YOUR ADDRESS, TELEPHONE NUMBER AND E-MAIL ADDRESS; (IV) A STATEMENT BY YOU THAT YOU HAVE A GOOD FAITH BELIEF THAT THE DISPUTED USE IS NOT AUTHORIZED BY THE COPYRIGHT OWNER, ITS AGENT, OR THE LAW; (V) A STATEMENT BY YOU, MADE UNDER PENALTY OF PERJURY, THAT THE INFORMATION IN YOUR NOTICE IS ACCURATE AND THAT YOU ARE THE COPYRIGHT OWNER OR AUTHORIZED TO ACT ON THE COPYRIGHT OWNER’S BEHALF; AND (VI) AN ELECTRONIC OR PHYSICAL SIGNATURE OF THE OWNER OF THE COPYRIGHT OR THE PERSON AUTHORIZED TO ACT ON BEHALF OF THE OWNER OF THE COPYRIGHT INTEREST.

OUR DESIGNATED AGENT UNDER THE DIGITAL MILLENNIUM COPYRIGHT ACT (THE “ACT”) FOR THE RECEIPT OF ANY NOTIFICATION OF CLAIMED INFRINGEMENT, WHICH MAY BE GIVEN UNDER THAT ACT IS AS FOLLOWS:

FITNESS, LIFE AND BALANCE, INC.
ATTN: SHELLEY J. MURRAY
1608 SW 9TH ST.
FORT LAUDERDALE, FL 33312

XIV. MISCELLANEOUS

THESE TERMS OF USE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, INCLUDING ITS CONFLICTS OF LAW RULES, AND THE UNITED STATES OF AMERICA. YOU AGREE THAT ANY DISPUTE ARISING FROM OR RELATING TO THE SUBJECT MATTER OF THESE TERMS OF USE SHALL BE GOVERNED BY THE EXCLUSIVE JURISDICTION AND VENUE OF THE STATE COURTS OF BROWARD COUNTY AND FEDERAL COURTS OF THE SOUTHERN DISTRICT OF FLORIDA.
THESE TERMS OF USE ARE THE ENTIRE AGREEMENT BETWEEN YOU AND US WITH RESPECT TO THE SERVICES, INCLUDING USE OF THE APPLICATIONS AND THE SITE, AND SUPERSEDE ALL PRIOR OR CONTEMPORANEOUS COMMUNICATIONS AND PROPOSALS (WHETHER ORAL, WRITTEN OR ELECTRONIC) BETWEEN YOU AND US WITH RESPECT TO THE SERVICES, AND ALL MODIFICATIONS TO THESE TERMS OF USE MUST BE IN WRITING AND SIGNED BY BOTH PARTIES, EXCEPT AS OTHERWISE PROVIDED HEREIN.

IF ANY PROVISION OF THESE TERMS OF USE IS FOUND TO BE UNENFORCEABLE OR INVALID, THAT PROVISION WILL BE LIMITED OR ELIMINATED TO THE MINIMUM EXTENT NECESSARY SO THAT THESE TERMS OF USE WILL OTHERWISE REMAIN IN FULL FORCE AND EFFECT AND ENFORCEABLE. THE FAILURE OF EITHER PARTY TO EXERCISE IN ANY RESPECT ANY RIGHT PROVIDED FOR HEREIN SHALL NOT BE DEEMED A WAIVER OF ANY FURTHER RIGHTS HEREUNDER.
WE SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM OUR OBLIGATIONS HEREUNDER WHERE SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION (INCLUDING “LINE-NOISE” INTERFERENCE).

THESE TERMS OF USE ARE PERSONAL TO YOU, AND ARE NOT ASSIGNABLE, TRANSFERABLE OR SUBLICENSABLE BY YOU EXCEPT WITH OUR PRIOR WRITTEN CONSENT OR AS DESCRIBED ABOVE. WE MAY ASSIGN, TRANSFER OR DELEGATE ANY OF OUR RIGHTS AND OBLIGATIONS HEREUNDER WITHOUT CONSENT.

NO AGENCY, PARTNERSHIP, JOINT VENTURE, OR EMPLOYMENT RELATIONSHIP IS CREATED AS A RESULT OF THESE TERMS OF USE AND NEITHER PARTY HAS ANY AUTHORITY OF ANY KIND TO BIND THE OTHER IN ANY RESPECT.

UNLESS OTHERWISE SPECIFIED IN THESE TERM OF USE, ALL NOTICES UNDER THESE TERMS OF USE WILL BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DULY GIVEN WHEN RECEIVED, IF PERSONALLY DELIVERED OR SENT BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED; WHEN RECEIPT IS ELECTRONICALLY CONFIRMED, IF TRANSMITTED BY FACSIMILE OR E-MAIL; OR THE DAY AFTER IT IS SENT, IF SENT FOR NEXT DAY DELIVERY BY RECOGNIZED OVERNIGHT DELIVERY SERVICE. ELECTRONIC NOTICES SHOULD BE SENT TO [email protected]

OUR FAILURE TO ENFORCE ANY PART OF THESE TERMS OF USE SHALL NOT CONSTITUTE A WAIVER OF OUR RIGHT TO LATER ENFORCE THAT OR ANY OTHER PART OF THESE TERMS OF USE. WAIVER OF COMPLIANCE IN ANY PARTICULAR INSTANCE DOES NOT MEAN THAT WE WILL WAIVE COMPLIANCE IN THE FUTURE. IN ORDER FOR ANY WAIVER OF COMPLIANCE WITH THESE TERMS OF USE TO BE BINDING, WE MUST PROVIDE YOU WITH WRITTEN NOTICE OF SUCH WAIVER THROUGH ONE OF OUR AUTHORIZED REPRESENTATIVES.

THE SECTION AND PARAGRAPH HEADINGS IN THESE TERMS OF USE ARE FOR CONVENIENCE ONLY AND SHALL NOT AFFECT THEIR INTERPRETATION.

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