Terms of Use | Fitness Connection (2024)

Acceptance of the Terms of Use

These terms of use are entered into by and between You and Fitness Connection (“Fitness Connection,” “we,” or “us”). The following terms and conditions, together with any documents expressly incorporated by reference, (“Terms of Use”), govern your access to and use of FitnessConnection.com, including any content, functionality, and services offered on or through FitnessConnection.com or the Fitness Connection mobile application (the “Website”), whether as a guest or a registered user.

Please read the Terms of Use carefully before you start to use the Website. By using the Website or by clicking to accept or agree to the Terms of Use when this option is made available to you, you accept and agree to be bound and abide by these Terms of Use, our Privacy Policy incorporated herein by reference. If you do not want to agree to these Terms of Use, the Privacy Policy, or the Communications Policy, you must not access or use the Website.

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Changes to the Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page periodically so you are aware of any changes, as they are binding on you.

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Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

You are responsible for both:

• Making all arrangements necessary for you to have access to the Website.
• Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

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Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by Fitness Connection, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

• Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
• You may store files that are automatically cached by your Web browser for display enhancement purposes.
• You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
• If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
• If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

• Modify copies of any materials from this site.
• Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
• Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you wish to make any use of material on the Website other than that set out in this section, please address your request to: [email protected].

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by Fitness Connection. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

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Trademarks

The Fitness Connection name, the Fitness Connection logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Fitness Connection or its affiliates or licensors. You must not use such marks without the prior written permission of Fitness Connection. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

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Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

• In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
• For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
• To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards set out in these Terms of Use.
• To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
• To impersonate or attempt to impersonate Fitness Connection, a Fitness Connection employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
• To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm Fitness Connection or users of the Website, or expose them to liability.

Additionally, you agree not to:

• Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
• Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
• Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
• Use any device, software, or routine that interferes with the proper working of the Website.
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
• Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
• Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
• Otherwise attempt to interfere with the proper working of the Website.

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User Contributions

The Website may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards, and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials (collectively, “User Contributions”) on or through the Website.

All User Contributions must comply with the Content Standards set out in these Terms of Use.

Any User Contribution you post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

• You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
• All of your User Contributions do and will comply with these Terms of Use.

You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Fitness Connection, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Website.

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Monitoring and Enforcement; Termination

We have the right to:

• Remove or refuse to post any User Contributions for any or no reason in our sole discretion.
• Take any action with respect to any User Contribution that we deem necessary or appropriate in our sole discretion, including if we believe that such User Contribution violates the Terms of Use, including the Content Standards, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Website or the public, or could create liability for Fitness Connection.
• Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy.
• Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Website.
• Terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS FITNESS CONNECTION AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY FITNESS CONNECTION/ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER FITNESS CONNECTION/SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

However, we cannot review all material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

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Content Standards

These content standards apply to any and all User Contributions and use of Interactive Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:

• Contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable.
• Promote sexually explicit or p*rnographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
• Infringe any patent, trademark, trade secret, copyright, or other intellectual property or other rights of any other person.
• Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy.
• Be likely to deceive any person.
• Promote any illegal activity, or advocate, promote, or assist any unlawful act.
• Cause annoyance, inconvenience, or needless anxiety or be likely to upset, embarrass, alarm, or annoy any other person.
• Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
• Involve commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter, or advertising.
• Give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.

Copyright Notice and Take Down Procedures

If you believe that any User Contributions violate your copyright, please follow the procedures set forth below to provide notice of alleged infringement and we will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”).

Notifying Fitness Connection of Infringement: If you believe that your work has been copied in a way that constitutes copyright infringement or infringement of other intellectual-property rights, please provide Fitness Connection’s designated agent (contact information below) with a written communication that includes the following (as required by the DMCA for complaints of copyright infringement):

1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
2. A description of the copyrighted work or other intellectual property that you claim has been infringed;
3. A detailed description of where the material that you claim is infringing is located or found on the Website;
4. Your address, telephone number, and e-mail address;
5. 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; and
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.

Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is infringing your copyright.

Please send your notice of claims of infringement of copyright or other intellectual property rights on or regarding the Website in writing to Fitness Connection’s copyright agent:

2517 Midway Road, Carrollton, Texas 75006

[email protected]

Providing Fitness Connection with Counter-Notification: If we remove or disable access to content in response to an infringement notice, we may make reasonable attempts to contact the owner or administrator of the affected content. If your material has been removed based on a claim that it infringes another party’s copyright and you feel that your material does not constitute copyright infringement, you may provide us with a counter-notification by written communication to our designated agent using the contact information above. Your counter-notification must set forth all of the necessary information required by the DMCA (which may be available at: http://www.copyright.gov/title17/92chap5.html#512). Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.

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Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents.

This Website may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Fitness Connection, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Fitness Connection. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

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Changes to the Website

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

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Information About You and Your Visits to the Website

All information we collect on this Website is subject to our Privacy Policy. By using the Website, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

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Linking to the Website and Social Media Features

You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsem*nt on our part without our express written consent.

This Website may provide certain social media features that enable you to:

• Link from your own or certain third-party websites to certain content on this Website.
• Send emails or other communications with certain content, or links to certain content, on this Website.
• Cause limited portions of content on this Website to be displayed or appear to be displayed on your own or certain third-party websites.

You may use these features solely as they are provided by us solely with respect to the content they are displayed with, and otherwise in accordance with any additional terms and conditions we provide with respect to such features. Subject to the foregoing, you must not:

• Establish a link from any website that is not owned by you.
• Cause the Website or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking.
• Link to any part of the Website other than the homepage.
• Otherwise take any action with respect to the materials on this Website that is inconsistent with any other provision of these Terms of Use.

The website from which you are linking, or on which you make certain content accessible, must comply in all respects with the Content Standards set out in these Terms of Use.

You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.

We may disable all or any social media features and any links at any time without notice in our discretion.

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Links from the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisem*nts, including banner advertisem*nts and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

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Geographic Restrictions

The owner of the Website is based in the State of Texas in the United States. We provide this Website for use only by persons located in the United States. We make no claims that the Website or any of its content is accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries. If you access the Website from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.

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Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.

YOUR USE OF THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN RISK. THE WEBSITE, ITS CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER FITNESS CONNECTION NOR ANY PERSON ASSOCIATED WITH FITNESS CONNECTION MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE. WITHOUT LIMITING THE FOREGOING, NEITHER FITNESS CONNECTION NOR ANYONE ASSOCIATED WITH FITNESS CONNECTION REPRESENTS OR WARRANTS THAT THE WEBSITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

TO THE FULLEST EXTENT PROVIDED BY LAW, FITNESS CONNECTION HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

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Limitation on Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL FITNESS CONNECTION, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

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Indemnification

You agree to defend, indemnify, and hold harmless Fitness Connection, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns (collectively, the “Fitness Connection Parties”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.

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Governing Law and Jurisdiction

These Terms of Use shall be subject to, governed by and construed under the laws of the state of Texas in the United States of America, without regard to conflict of law principles. Your access to, or use of, the Services or information, materials, products and/or services through the Services may be prohibited by law in certain countries or jurisdictions. You are responsible for compliance with any applicable laws of the country from which you are accessing the Services.

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Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR FINAL, BINDING INDIVIDUAL ARBITRATION AND A WAIVER OF ANY AND ALL RIGHTS TO PROCEED IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR COLLECTIVE ACTION. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THESE TERMS OF USE.

Applicability of Arbitration. This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of or in connection with our relationship. Any dispute or claim between you and any Fitness Connection Party arising out of or relating to these Terms of Use or your use of the Services (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved on an individual basis through binding arbitration except that (a) you may take claims to small claims court if they qualify for hearing by such a court, (b) you or we may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents), or (c) you or we may choose to pursue claims in court if the claims relate solely to the collection of any debts you owe to us (collectively, the “Excluded Disputes”).

The arbitrator shall decide all issues except (1) those that are specifically addressed herein, (2) those issues relating to the scope, validity, and enforceability of the Arbitration Agreement, and (3) any issues arising from or relating to the arbitrability of any dispute, all of which are for a court of competent jurisdiction to decide. These Terms and this Arbitration Agreement do not prevent you from bringing your dispute to the attention of any federal, state, or local government agency.

BY AGREEING TO ARBITRATION, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST ANY FITNESS CONNECTION PARTY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST ANY FITNESS CONNECTION PARTY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

Pre-Arbitration Informal Dispute Resolution. You and we agree to make a good faith effort to resolve any dispute informally prior to initiating an arbitration proceeding. Each party must provide an opportunity to resolve the dispute by providing a detailed description of the dispute; contact information (address, telephone number, email address, and account number if applicable); sufficient information to enable you or us to identify any transaction at issue; and a detailed description of (1) the nature and basis of any claims and (2) the nature and basis of the relief sought (including a detailed calculation of any financial relief sought). Your notice to us must be personally signed by you (and your attorney if you are represented by legal counsel). Our notice to you must be personally signed by a representative of a Fitness Connection Party (and our attorney if we are represented by legal counsel). You must contact us in writing or by electronic mail, at the information provided in the “Your Comments and Concerns” section herein. We will contact you at the most recent contact information that you have provided to us.

For a period of 60 days from the date of receipt of a completed notice from the other party, you and we will work together using reasonable, good-faith efforts to try to resolve the dispute. If requested by us in connection with a notice initiated by you, you must personally participate in an individualized telephone settlement conference (and if you are represented by an attorney, your attorney may also participate) to discuss a potential resolution. If requested by you in connection with a notice initiated by us, a representative of a Fitness Connection Party must personally participate in an individualized, telephone settlement conference (and if we are represented by an attorney, our attorney may also participate). If the dispute is not resolved within this 60-day period (which period can be extended by agreement of the parties), you or we may request arbitration if the dispute cannot be resolved within sixty (60) days. Compliance with this informal dispute resolution process is mandatory and a condition precedent to initiating arbitration.

Any applicable limitations period (including statutes of limitations) shall be tolled while the parties engage in this informal dispute resolution process.

If the sufficiency of a notice or compliance with this informal dispute resolution process is at issue, such sufficiency may be decided by a court of competent jurisdiction at either party’s election, and any arbitration shall be stayed pending resolution of the issue. The court shall have the authority to enforce this condition precedent to arbitration, which includes the power to enjoin the filing or prosecution of a demand for arbitration or the assessment or payment of arbitration fees. You or we may also elect to raise non-compliance with this informal dispute resolution process and seek relief with a process arbitrator (as applicable) or in arbitration.

Arbitration Rules and Forum. The arbitration of any dispute or claim shall be conducted by a sole arbitrator under the applicable rules for the American Arbitration Association (“AAA”), adr.org (or any successor to AAA), as modified by these Terms of Use. The AAA rules (“AAA Rules”) are available at https://www.adr.org/Rules. In the event AAA is unwilling or unable to hear the dispute, then either party can elect to have the arbitration administered by another mutually agreeable arbitration administration service that will hear the case. You and we agree that these Terms of Use evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration law. The federal or state law that applies to these Terms of Use will also apply during the arbitration.

The arbitration demand must be accompanied by a certification personally signed by you (and your attorney, if you are represented by legal counsel) if you are initiating the arbitration or by representative of a Fitness Connection Party (and our attorney, if we are represented by counsel) if we initiate the arbitration. Such statement must state that you or we, as applicable, satisfied the pre-arbitration informal dispute resolution process. By signing the certification, the attorney represents that to the best of their information, knowledge, and belief, formed after a reasonable inquiry that: (1) the arbitration demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims or other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after reasonable opportunity for further investigation or discovery. The arbitrator shall be authorized to impose any sanctions available under Federal Rule of Civil Procedure 11 on the parties and/or their counsel.

Unless you and we agree otherwise, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. An arbitrator may not award relief in excess of or contrary to what these Terms of Use provide, order consolidation or arbitration on a class-wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. In any arbitration applying the AAA Rules applicable to large/complex cases, the arbitrators must also apply the Federal Rules of Evidence, and the losing party may have the award reviewed in accordance with the review procedures set forth in the AAA Rules. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction.

Payment of all filing, administration and arbitrator fees will be governed by AAA’s applicable rules, as modified by this Arbitration Agreement. AAA’s rules may be found on its website, adr.org, or by contacting AAA. If the arbitrator finds that you cannot afford to pay the AAA filing, administrative, hearing and/or other fees and cannot obtain a waiver from the AAA, the Fitness Connection Party will reimburse them for you. Notwithstanding anything to the contrary herein, if any Fitness Connection Party is required to pay your portion of the arbitration fee for this Arbitration Agreement to be enforceable, it shall do so. To the fullest extent permissible by law, the cost-shifting provisions of Federal Rule of Civil Procedure 68 shall apply, and shall be enforced by the arbitrator after the entry of an award.

Except as specifically provided herein, you may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location, except any dispute over $25,000 shall have an in-person or video hearing. You and the Fitness Connection Party reserve the right to request a hearing in any matter from the arbitrator. You and the Fitness Connection Party agree that your respective representatives will personally appear at any hearing (along with your respective legal counsel, if the parties are represented by legal counsel). If an in-person arbitration hearing is required, then it will be conducted at a location that is reasonably convenient to you or at another mutually agreed-upon location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

You and the Fitness Connection Party agree that we have a shared interest in reducing the fees and costs and increasing the efficiencies associated with arbitration. Therefore, either party may negotiate with the AAA for reduced or deferred arbitration fees, and you and the Fitness Connection Party agree that the parties (and your and our counsel, if you and we are represented by legal counsel) will work together in good faith to ensure that arbitration remains cost-effective for all parties.

Authority of Arbitrator. The arbitration will be conducted by a single arbitrator. The arbitrator will apply and be bound by these Terms of Use as a court would, and will adjudicate any Dispute according to applicable law and facts based upon the record, and not based upon any other basis. The arbitrator will decide the rights and liabilities, if any, of you and any Fitness Connection Party. The arbitrator will have the authority to grant motions dispositive of all or part of any claim. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms of Use (including the Arbitration Agreement). The arbitrator will 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 us, but shall have no preclusive effect in any other arbitration or proceeding involving a different party.

Additional Procedures for Mass Arbitration. If twenty-five (25) or more similar claims are asserted against any Fitness Connection Party by the same or coordinated counsel or are otherwise coordinated (and your claim is one such claim), you and any Fitness Connection Party agree that these additional procedures set forth in this subsection will apply. You and any Fitness Connection Party also understand and agree that, in such event, the resolution of the dispute might be delayed.

You and the Fitness Connection Party also agree to the following process and application of the AAA Multiple Consumer Case Filing Fee Schedule and Supplementary Rules. Counsel for the claimants and counsel for the Fitness Connection Party shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a staged process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those claims until they are selected to proceed to individual arbitration proceedings as part of a staged process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, the parties shall participate in a global mediation session before a retired state or federal court judge, and the Fitness Connection Party shall pay the mediator’s fee.

If the parties are unable to resolve the remaining matters in mediation at this time, each side shall select twenty (20) cases (per side) to proceed to individual arbitration proceedings as part of a second staged process. (If there are fewer than forty (40) claims remaining, all shall proceed.) The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a staged process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a staged process unless the parties agree otherwise. If the parties are unable to resolve the remaining cases after the conclusion of the forty (40) proceedings, the parties shall participate in another global mediation session before a retired state or federal court judge, and the Fitness Connection Party shall pay the mediator’s fee.

If the parties are unable to resolve the remaining matters in mediation at this time, this staged process shall continue with one hundred (100) cases proceeding at one time that are selected randomly or by the AAA in staged sets, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. Between staged sets of proceedings, the Fitness Connection Party agrees to participate in a global mediation session should your counsel request it in an effort to resolve all remaining claims.

Any applicable limitations periods (including statutes of limitations) and any arbitration fee deadlines shall be tolled for claims subject to these additional procedures from the time the first cases are selected to proceed until the time your case is selected, withdrawn, settled, or otherwise resolved.

Each arbitrator shall endeavor to issue their award within 120 days of their appointment or as swiftly as possible while ensuring fairness to the parties.

Counsel for the parties will meet and confer throughout this process in an effort to informally resolve the remaining claims, streamline procedures, address the informal exchange of information, modify the number of claims to be adjudicated in any given set of staged proceedings, and ensure the process remains fair and efficient for all parties.

A court of competent jurisdiction will have the authority to enforce this “Additional Procedures for Mass Arbitration” section of the Arbitration Agreement, including by enjoining the mass filing, the prosecution or administration of arbitrations, or the assessment or collection of AAA fees.

This subsection of the Arbitration Agreement and each of its requirements are intended to be severable from the rest of this Arbitration Agreement. If, after exhaustion of all appeals, a court of competent jurisdiction decides that the staging process in this subsection is not enforceable, then the claims may be filed in arbitration and the payment of AAA filing, administration, case-management, hearing, and arbitrator fees will be assessed as the arbitrations advance and arbitrators are appointed rather than when the arbitrations are initiated. You and we also agree that should the staging process in this subsection be deemed not enforceable as set forth above, your counsel and our counsel will work together in good faith, including with the assistance of a process arbitrator, to develop streamlined procedures for the adjudication of claims to reduce the costs and maximize the efficiency of arbitration.

Waiver of Jury Trial. YOU AND THE FITNESS CONNECTION PARTY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and the Fitness Connection Party are instead electing that all disputes will be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Arbitration Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

Waiver of Class or Consolidated Actions. YOU AND THE FITNESS CONNECTION PARTY WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION IN COURT TO THE FULLEST EXTENT PERMISSIBLE BY LAW. UNLESS YOU AND WE AGREE OTHERWISE, ALL DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS DESCRIBED ABOVE. In the event that this class or consolidated action waiver is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes will be resolved in a court as set forth below.

30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out by contacting [email protected], within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, and an unequivocal statement that you want to opt out of this Arbitration Agreement. Your notice must be personally signed by you. If you opt out of this Arbitration Agreement, all other parts of these Terms of Use, including the class action waiver and jury waiver, will continue to apply to you and remain in effect to the fullest extent permitted by law. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.

Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.

Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fitness connection or any Fitness Connection Party.

Future Modifications to this Section Regarding Binding Arbitration: Notwithstanding any provision to the contrary, we agree that if Fitness Connection or any Fitness Connection Party makes any future changes to this Arbitration Agreement section (other than a change to the mailing or email address), you may reject any such change by sending us written notice personally signed by you within thirty (30) days of the change to the address provided above. This is not an opt-out of arbitration altogether. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement section.

IF FOR ANY REASON THIS ARBITRATION AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, YOU AND WE BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIMS TO RECOVER PUNITIVE OR EXEMPLARY DAMAGES AND ANY RIGHT TO PURSUE ANY CLAIMS ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. IF THIS ARBITRATION CLAUSE OR THE CLASS ACTION WAIVER SET FORTH IN THESE TERMS IS DEEMED INAPPLICABLE OR INVALID, THEN YOU HEREBY AGREE THAT ANY DISPUTE MUST BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN COLLIN COUNTY, TEXAS AND YOU HEREBY CONSENT AND WAIVE ALL OBJECTIONS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.

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Waiver and Severability

No waiver by Fitness Connection of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Fitness Connection to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

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Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Fitness Connection regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

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Your Comments and Concerns

This website is operated by Fitness Connection 2517 Midway Road, Carrollton, Texas 75006.

All notices of copyright infringement claims should be sent to the copyright agent designated above in the “Copyright Notice and Take Down Procedures” section in the manner and by the means set out therein.

All other feedback, comments, requests for technical support, and other communications relating to the Website should be directed to: [email protected].