LICENSE AGREEMENT AND TERMS OF SERVICE
This License Agreement and Terms of Service (the “Terms of Service”) governs your use of the “GOLD’S AMP™” mobile software application that Gold’s Holding Corp. makes available for download and the related websites and other online properties. The GOLD’S AMP™ mobile application is referred to as the “App”; Gold’s Holding Corp is referred to as “we”; and the App and other websites and online properties are referred to as the “Service.” WHEN YOU INSTALL, ACCESS OR USE THE SERVICE, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, DO NOT LOAD OR USE THE SERVICE.
General Terms and Conditions
- Participation at Your Own Risk. You should consult your doctor before engaging in any exercise program or activity. You acknowledge that Gold’s Gym cannot and has not provided any medical advice, and is not offering medical advice, whether related to your physical condition and ability to participate in activities or programs or otherwise. You acknowledge and agree that you access and use the Service at your own risk, and that you will discuss any health or medical concerns with your physician or other health professional prior to and while participating in exercise activities provided through the Service.
- Children and Minors. You may not use or access the Service if you are under the age of 13. If you are 14 to 17 years of age and are accessing or using the Service, you must obtain the consent of your parent or legal guardian, and by using the Service you represent to us that you have obtained such consent.
- Restrictions on Use. You are responsible for complying with all laws applicable to your access or use of the Service. You may not access or use the App outside of the United States and Canada. We make no representation that the Service or materials on the Service are appropriate, comply with laws of the jurisdiction in which you access or use them, or are or will be available for use in any locations other than the United States of America and Canada. We may immediately terminate your account and access to the Service if we learn that you are in violation of the geographical restrictions set forth.
About the Service
- The Service is a fitness-oriented service that will allow you access to digital coached workouts accompanied by music. We will determine and will have sole discretion over every aspect of the Service, including, without limitation:
- The type, number and frequency of workouts
- The content of each workout or other service offered through the Service
- The nature and content of the coaching provided as part of the Service
- We make no promise or guaranty that any particular music, particular workout, type of workout, coach, or any particular type or content of coaching will be available.
- The Service will be accessible via a mobile phone, tablet, or other wireless device. Your use of the Service may subject you to third party terms of service and fees. You are solely responsible for such terms of service obligations and any costs charged by third parties, such as your mobile carrier, related to your access or use of the Service, including for messaging, data, and other applicable rates and fees.
- You are responsible for procuring and maintaining the equipment, systems and telecommunication services necessary to access the Service.
- You must comply with any restrictions imposed by your mobile carrier or other service provider regarding downloading, installing, or using the Service or any portion thereof. It is possible that not all parts of the Service will be available on your particular device or through your particular carrier. We encourage you to contact your carrier and consult the owner’s manual regarding these issues.
- External Sites. The Service may contain links to, or the ability to share information with, third party websites (“External Sites”). The owners of any External Sites are entirely responsible for, and we do not endorse, recommend or make any representations regarding, any content they make available. Contact to owner of any External Site directly if you have any concerns regarding such content located on such External Sites. If you download files from any External Site, you should take precautions to protect your computer and mobile devices from viruses and other destructive programs before doing so. You deal with External Sites at your own risk, and we will have no liability to you arising from your use, engagement, exposure to, or interaction with any External Sites.
- The Service may contain certain open source software that is or will be subject to its own applicable license terms.
Creating and Maintaining Your Account
- To access and use the Service, you will be required to download and launch the App and, following the prompts, create an account with us. You must provide true, accurate, current, and complete information. You agree to update the information about yourself promptly, and as necessary, to keep it current and accurate. Your usernames and permalinks are subject to our approval from time to time.
- You must keep your account information secure, and you are solely responsible for the accuracy of the information you provide and all activities that occur under your password or account. You must notify us immediately of any breach of security or unauthorized use of your account.
- When you create your account to access and use the Service, if you are then a member of a Gold’s Gym, you will be required to identify the Gold’s Gym in which you are a member. If you are not a member of a Gold’s Gym, your entire interaction with the Service, including managing and paying for your subscription, will be handled through the Google Store or Apple App Store (the “Online Store”), as applicable. Through an agreement with our affiliate, Franchise Gyms license the rights to offer the Service to members of Gold’s Gym franchised facilities. If the Gold’s Gym of which you are a member is owned and operated by an independent franchisee of our affiliate (a “Franchise Gym”), your interaction with the Service, including managing and paying for your subscription, will depend on that Franchise Gym’s license arrangement with us or our affiliate (the “Franchise Gym Plan”). Depending on the Franchise Gym Plan, you will be required to either (i) manage and pay for your subscription through the Online Store or App or (ii) interface directly with the Franchise Gym with respect to your subscription.
- We may, in our discretion, suspend or terminate your account if we believe that activities on your account would or might constitute a violation of the Terms of Service, cause damage to or impair the Service, infringe or violate any third-party rights, damage or bring into disrepute our reputation or that of Gold’s Gym or its facilities, or violate any applicable laws or regulations.
- If messages sent to the e-mail address you provide are returned as undeliverable, we may terminate your account immediately without notice or liability to you or any third party.
- By establishing an account with us, you authorize us, our affiliates and marketing partners, and if you are a member of a Franchise Gym, the Franchise Gym, to send you promotional emails regarding the Service and other services provided by Gold’s Gym.
Promotional or Free Trial Period
- The Trial applies only to new customers. Trials may not be combined with other offers, as specified.
- The Trial period will last for the period of time specified when you signed up. If you begin your subscription with a Trial, you consent to be automatically enrolled in a recurring monthly subscription unless you cancel before the end of the Trial period. If you do not cancel prior to the end of the Trial period, your provided payment method will be billed for monthly subscription fees (which may be part of a Gold’s Gym membership with us, our affiliates, or a Franchise Gym, as applicable) at the end of the free trial period and your subscription will automatically renew on a monthly basis until cancelled per the Terms of Service.
- AUTOMATIC ENROLLMENT AND BILLING. IF YOU DO NOT CANCEL BEFORE THE END OF YOUR TRIAL PERIOD, YOU WILL BE AUTOMATICALLY ENROLLED IN A MONTHLY SUBSCRIPTION AND YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW EACH MONTH UNLESS AND UNTIL YOU CANCEL IT AS DESCRIBED BELOW OR AS DESCRIBED IN YOUR ACCOUNT ENROLLMENT DOCUMENTS. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE US, THE APPLE STORE OR GOOGLE STORE, OR THE FRANCHISEE/OWNER OF THE FRANCHISED GYM IN WHICH YOU ARE A MEMBER (AS APPLICABLE) TO CHARGE THE PAYMENT METHOD THAT THE APPLICABLE PAYMENT PROCESSOR HAS ON FILE FOR YOU TO PAY FOR THE SUBSCRIPTION AT THE END OF THE TRIAL PERIOD AND RENEWAL SUBSCRIPTIONS THEREAFTER.
- HOW TO CANCEL: Instructions are on how to cancel are set forth under the section “Cancellation”, below.
- We reserve the right, on our sole discretion, to withdraw or cancel the Trial at any time without notice and without liability, and further to make modifications to the Service. In the event that we withdraw or cancel the Trial during your Trial period, your subscription will terminate and you will not incur any further billings.
Subscriptions and Payment
- To enjoy the full benefits of the Service, you must enroll in and purchase a subscription to the Service. Your use of the Service constitutes your agreement to the terms of any Trial period, pay the amounts required under the terms of your subscription (which may be part of a Gold’s Gym membership with us, our affiliates, or a Franchise Gym (as applicable)).
- MEMBER RATE. As a Gold’s Gym member, depending on the type of membership you have, and whether your membership is with a Gold’s Gym location operated by us or an affiliate or by a Franchise Gym, your subscription to the Service may be a la carte or part of your Gold’s Gym membership. However, the rate provided to you as a Gold’s Gym member (the “Member Rate”) is contingent upon the continuation of your membership. If your Gold’s Gym membership is terminated for any reason, you will no longer have access to the Service at the Member Rate provided to you. Your subscription will be terminated, and you will be required to re-subscribe at the monthly rate then in effect for non-members (the “Non-Member Rate”). You may be required to sign up for a new account.
- Franchise Gym Members. Depending on the Franchise Gym Plan, your subscription and your interaction with the Service will either be: (i) managed and billed through the Online Store or the App or (ii) managed and billed by and through the Franchise Gym in conjunction with your membership. If your Franchise Gym modifies or cancels its Franchise Gym Plan, your monthly subscription fee may change, or your existing subscription may be terminated and you may be required to re-subscribe at a different rate. If your Franchise Gym ceases operation as an authorized Gold’s Gym facility for any reason, your subscription will be terminated, and you will be required to re-subscribe at then-by current rate.
- In order to access and use the Service, your subscription must be current and fully paid in accordance with its terms. If you fail to pay the amounts required under the terms of your subscription when they are due, or your payment is declined or rejected for any reason, your account may be terminated or suspended until the subscription is current and fully paid. If your account is terminated and you later wish to access and use the Service, you may be required to create a new account as a condition of doing so.
- AUTOMATIC RENEWAL. YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW EACH MONTH UNLESS AND UNTIL YOU CANCEL IT AS DESCRIBED BELOW OR AS DESCRIBED IN YOUR ACCOUNT ENROLLMENT DOCUMENTS.
- Recurring Charges. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE US, THE APPLE STORE OR GOOGLE STORE, OR THE FRANCHISEE/OWNER of THE FRANCHISED GYM IN WHICH YOU ARE A MEMBER (AS APPLICABLE) TO CHARGE THE PAYMENT METHOD THAT THE APPLICABLE PAYMENT PROCESSOR HAS ON FILE FOR YOU TO PAY FOR ANY RENEWAL SUBSCRIPTION. YOU WILL BE BILLED FOR THE SAME SUBSCRIPTION PLAN (OR THE MOST SIMILAR SUBSCRIPTION PLAN, IF YOUR PRIOR PLAN IS NO LONGER AVAILABLE) AT THE THEN-CURRENT SUBSCRIPTION PRICE PLUS ANY APPLICABLE TAXES. YOUR PAYMENTS FOR ANY RENEWAL SUBSCRIPTION WILL BE PROCESSED USING THE SAME BILLING CYCLE AS YOUR CURRENT SUBSCRIPTION. IN OTHER WORDS, IF YOUR PAYMENT IS PROCESSED FOR YOUR CURRENT SUBSCRIPTION ON THE 20TH OF EACH MONTH, THEN PAYMENT WILL CONTINUE TO BE PROCESSED ON THAT DAY FOR ANY RENEWAL SUBSCRIPTION. ADDITIONAL TERMS AND CONDITIONS MAY APPLY UPON RENEWAL, AND SUBSCRIPTION FEES MAY CHANGE AT ANY TIME, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- Term. The Terms of Service are effective upon your acceptance of the Terms of Service, or upon your downloading, installing, accessing, and using the Service, even if you have not expressly accepted the Terms of Service, and will continue in effect until expiration, or termination by you or us, as provided herein.
- Termination. You may terminate the Terms of Service by sending written notification of cancellation as provided in paragraph 29 above, deleting the App from your mobile device, and terminating all other uses of the Service. We reserve the right, at any time and in our sole discretion, to suspend or terminate the Service or any part thereof and to revise the terms of your subscription. If, before the end of a subscription period for which you have paid, we suspend or terminate the Service for reasons that are not attributable to you, the subscription fees for the unused portion of the Service will be refunded pro rata to you. If we change the price of the Service, that change will not become effective until we publish a description of the change and your subscription renews at the end of its then-current billing cycle.
YOU MAY CANCEL YOUR SUBSCRIPTION TO THE SERVICE AT ANY TIME, EFFECTIVE AT THE END OF THE BILLING PERIOD IN WHICH YOUR NOTICE OF CANCELLATION IS RECEIVED. You will not be responsible for any additional payments once your subscription is properly cancelled and your account is closed.
How to cancel:
- Subscriptions purchased from Gold’s Gym Corporate Gyms or Premium Franchise Gyms. If you are a Gold’s Gym member and your subscription was purchased and your payments are made to us or an affiliate of ours or to a Franchise Gym that has subscribed to the Premium licensing plan (i.e. you did not purchase your subscription through the Online Store or the App), you may cancel your subscription by navigating to the side menu of the App, selecting Settings, and then clicking the Cancel button in the menu on the App.
- Subscriptions Purchased through Online Store or App. If your subscription was purchased and you are billed through the Online Store or the App, you will submit your cancellation notice through the Online Store or App. Instructions on how to cancel Online Store subscriptions can be found here: .
Intellectual Property Rights
- No Reverse Engineering or Other Action. You agree that you will not make unauthorized copies or derivative works of any content made available on or through the Service; use any device, software, or routine to interfere or attempt to interfere with the proper working of the Service, or any activity conducted on the Service; attempt to decipher, decompile, disassemble, or reverse engineer any of the software or source code comprising or making up the Service; delete or alter any material we or any other person or entity posts on the Service; frame or link to any of the materials or information available on the Service; alter, deface, mutilate, or otherwise bypass any approved software through which the Service is made available; access, tamper with, or use non-public areas of the Service, our (and its hosting company’s) computer systems and infrastructure, or the technical delivery systems of our providers; provide any false personal information; create a false identity or impersonate another person or entity in any way; without our consent, create a new account if we have previously disabled your account; solicit, or attempt to solicit, personal information from other users of the Service; restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about Users of the Service; use the Service to send emails or other communications to persons who have requested that you not send them communications; use the Service for any commercial or unauthorized purpose; gain unauthorized access to the Service, to other users’ accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service; post any virus, worm, spyware, or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software, or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service; interfere with or disrupt the Service, networks, or servers connected to the Service or violate the regulations, policies, or procedures of those networks or servers; or violate any applicable federal, state, or local laws or regulations or the terms of the Terms of Service. Doing any of the foregoing may subject you to liability in addition to the suspension or termination of your access or use of the Service.
- Trademarks and Other Intellectual Property. The words Gold’s Gym®, Gold’s AMP™, and related trademarks, service marks, logos, symbols and devices displayed on and in the Service, and all intellectual property in or associated with the Service and its content (including coached workouts), whether registered or unregistered, are our property. Other product and service names on the Service may be intellectual property owned by third parties. By using the Service, you disclaim any rights to them except for the limited right to use them for your own personal, non-commercial use during the period in which you have a paid subscription, in accordance with the Terms of Service. All goodwill generated from the use of our intellectual property will inure solely to our benefit.
- Content and Materials. The content that we use that comprises the Service, including without limitation, any exercise or coaching workouts and plans, text, graphics, photos, software, sound recordings (and the musical works embodied therein), and interactive features, may be protected by copyright or other intellectual property rights that are owned by us or a third-party. You may not copy, reproduce, upload, republish, broadcast, transmit, retransmit, post, create derivative works of, publicly perform, publicly display, use for commercial purpose or distribute any materials from the Service in any way without prior express written permission of the copyright owner of such material or as otherwise specified in the Terms of Service or permitted by the Service’s intended functionalities. You may not modify or use any materials obtained from or available through the Service unless you have obtained the applicable copyright owner’s prior express written authorization.
- Feedback and Suggestions. If you choose to send us or our employees any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings, promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials regarding or related to the Service (collectively “Improvement Suggestions”), you agree that, regardless of what your accompanying communication might say, your Improvement Suggestions become our property. If and to the extent they are not our property, you irrevocably grant us the perpetual and unlimited permission to use them and any derivatives thereof for any purpose, in any manner we choose, without restriction. We will not be required to compensate you, in any way, for any such use.
- Copyright Infringement Notification. If you are a copyright holder who believes that content on the Service violates the copyright laws of the United States or any other jurisdiction, please notify us, pursuant to The Digital Millennium Copyright Act, 17 United States Code 512(c)(3) ("DMCA"), at DMCA Agent, Russell Greene, 1080 Peachtree Street, Unit 2210, Atlanta, GA 30309 or by email at: DMCA@FitRadio.com.
Notification. Your notice must include a physical or electronic signature of the owner (or person authorized to act on behalf of the owner) of the copyright that is allegedly infringed; specific identification of each copyrighted work claimed to have been infringed; a description of where the material believed to be infringed is located on the Service (be as detailed as possible and provide a URL if possible to help us the material you are reporting); contact information for the complaining party, including your complete name, address, telephone number, and email address; a statement that the complaining party has a good faith belief that use of the work(s) in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Counter notification. The user who uploaded the material that is described in your DMCA Notification may file a counter notification which must be submitted to our DMCA Agent (at the same address) and include a physical or electronic signature of the subscriber; identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled; a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and the user’s name, address, and telephone number, and a statement that the user consents to the jurisdiction of the Federal District Court for the judicial district in which the user’s address is located, or if the user’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided the original notification or an agent of such person. If we receive a counter notification, we will forward it to the party who submitted the original claim of infringement. You acknowledge and agree that your personal information will be included. The original claimant will have 10 days after receiving the counter notification to notify us that it has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Service. If we receive that notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material in our sole discretion. Under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material was removed or disabled by mistake or misidentification may be subject to liability.
- Any content that you upload, post or transmit to or through the Service (including your name, likeness and voice but excluding any materials that include our intellectual property), if you are allowed through the Service to do so, is considered “User Content.”
- Ownership of User Content. If you are allowed to post any User Content to or on the Service, you may do so only if you are the owner of the User Content that you post or otherwise have the license or authorization from the owner to post it. By posting any User Content, you represent and warrant that: (i) you own it or otherwise have the right to grant the license set forth in paragraph 40 below; (ii) the information does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or any other rights of any person; and (iii) your post will not require us to obtain any further licenses from or pay any royalties, fees, compensation, or other amounts or provide any attribution to any third parties.
- License to User Content and Waiver of Rights You grant us the unrestricted, assignable, sublicensable, revocable, royalty-free license throughout the universe to reproduce, distribute, publicly display, communicate to the public, publicly perform (including by means of digital audio transmissions and on a through-to-the-audience basis), make available, create derivative works from, retransmit, and otherwise exploit and use all or any part of your User Content. You waive any and all rights of privacy, publicity, or any other rights of a similar nature in connection with your User Content, or any portion thereof. To the extent any moral rights are not transferable or assignable, you hereby waive and agree never to assert any and all moral rights, or to support, maintain, or permit any action based on any moral rights that you may have in or with respect to any User Content that you Post to or through the Service.
- Restrictions on User Content. You are responsible for your User Content. You agree not to post, and we reserve the right to remove, disallow, block, or delete, in our sole discretion, any User Content that is or could be interpreted to be “objectionable,” including any content that is: (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, inappropriate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, vulgar, or in violation of any applicable laws (including laws related to speech); or (ii) promoting any product, good, or service, or bigotry, discrimination, hatred, intolerance, racism, or inciting violence (including suicide); or (iii) violates any applicable law or the Terms of Service. If you encounter any content that you believe to be objectionable, please inform us through the functionality offered on the Service. We will take any action (or take no action) in response to your report, in our sole discretion. WE WILL HAVE NO LIABILITY FOR UNAUTHORIZED USE OF USER CONTENT BY YOU OR OTHER USERS.
Governing Law and Dispute Resolution
- Arbitration. All questions, differences, controversies, claims, or disputes arising out of or in connection with the Service or the Terms of Service shall be submitted to and resolved in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Arbitration proceedings will be held in Dallas, Texas and conducted by a single arbitrator mutually acceptable to you and us (or if you and we are not able to agree on an arbitrator, one appointed by the AAA). ALL PROCEEDINGS SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS, NOT AS A CLASS ACTION (PARTICIPATION IN WHICH IS HEREBY WAIVED), AND MAY NOT BE COMBINED WITH OTHER PROCEEDINGS. Any judgment upon an award rendered by the arbitrator may be entered in any state or federal court located in Dallas, Texas. The party desiring arbitration shall so notify the other party, in writing, in accordance with the aforesaid rules. Arbitration is the sole exclusive remedy of the parties of any controversy hereunder. This arbitration clause shall be construed in accordance with the laws of the State of Texas in the United States, without reference to choice of law principles, and shall be deemed to be a mandatory submission to arbitration under the provisions of said laws. In any such action, the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs and reasonably attorney's fees.
- Governing Law and Severability. The validity and construction of the Terms of Service shall be governed by and construed in accordance with the laws of the State of Texas, without reference to choice of law principles.
- The party prevailing in any arbitration or court proceeding initiated as described above shall be entitled to an award of reasonable attorneys’ and other professionals’ fees and costs associated with the action.
Disclaimer of Warranties and Limitation of Liability
- WE, OUR AFFILIATES, AND OUR AND THEIR RESPECTIVE OFFICERS, SHAREHOLDERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, CONTRACTORS, FRANCHISEES, LICENSEES AND LICENSORS (COLLECTIVELY, THE “GOLD’S PARTIES”) MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE SERVICE OR ANY CONTENT (INCLUDING WORKOUTS OR CONTENT) AVAILABLE ON THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY, RELIABILITY, COMPLETENESS, APPROPRIATENESS, TIMELINESS, OR RELIABILITY THEREOF. THE GOLD’S PARTIES WILL NOT BE SUBJECT TO LIABILITY FOR THE TRUTH, ACCURACY, OR COMPLETENESS OF ANY CONTENT ON THE SERVICE OR ANY OTHER INFORMATION CONVEYED TO ANY USER, OR FOR ERRORS, MISTAKES, OR OMISSIONS THEREIN, OR FOR ANY DELAYS OR INTERRUPTIONS OF THE DATA OR INFORMATION STREAM FROM WHATEVER CAUSE. AS A USER, YOU AGREE THAT YOU USE THE SERVICE AND ANY CONTENT THEREON AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ALL CONTENT YOU UPLOAD TO THE SERVICE.
- WE DO NOT WARRANT THAT THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT THEREON ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SERVICE OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN NO GOLD’S PARTY WILL BE RESPONSIBLE FOR THOSE COSTS.
- THE SERVICE AND ALL CONTENT THEREIN (INCLUDING WORKOUTS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ACCORDINGLY, THE GOLD’S PARTIES DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE.
- IN NO EVENT WILL THE AGGREGATE OF ANY GOLD’S PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH YOUR ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE OR PERFORMANCE OR NONPERFORMANCE OF THE TERMS OF SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR LIABILITY, AND THE LIABILITY OF ANY GOLD’S PARTY, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF THE FEES YOU HAVE PAID US FOR YOUR SUBSCRIPTION DURING THE PRIOR 12-MONTH PERIOD AND U.S. $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- WE WILL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND THE GOLD’S PARTIES HEREBY DISCLAIM ANY AND ALL LIABILITY TO YOU FOR LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
Waiver of Liability and Indemnification
- Indemnification. To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Gold’s Parties from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising out of or resulting from (whether directly or indirectly) (a) your breach of the Terms of Service or applicable law; (b) your access to, use, or misuse of the Service or the content provided on, by or through the Service; (c) your User Content; (d) your violation of any third party right, without limitation, property, privacy, and intellectual property; (e) any action by a Gold’s Party to investigate a suspected violation of the Terms of Service or applicable law; and (f) bodily injury, personal injury, property damage or loss of any kind which may be sustained by you or any person whatsoever, whether or not caused in whole or in part by the active or passive actions of a Gold’s Party, and whether or not caused in whole or in part by the negligence of a Gold’s Party. We will provide notice to you of any such claim, suit, or proceeding. We reserve the right to assume the exclusive defense and control of any matter which is subject to indemnification under this paragraph if we believe that you are unwilling or incapable of defending our interests. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter at your expense.
- Assumption of Risk. You acknowledge and agree that you are accessing and using the Service at your own risk. In consideration of the privilege to access and use the Service, part of which consists exercising (which may be in or outdoors) including but not limited to running, cycling, jumping, pushups, sit ups, lifting weight and other military-style exercise activities, you acknowledges and agree that no Gold’s Party shall be liable for, and you agrees to assume all risk for and waive all liability for, claims, causes of action, demands, costs, damages, liabilities, liens, and expenses (including attorneys’ fees) (collectively and each a ”Claim”) arising out of or relating to, directly or indirectly, any bodily injury, personal injury, property damage or loss of any kind which may be sustained by you, whether or not caused in whole or in part by the active or passive actions of a Gold’s Party, and whether or not caused in whole or in part by the negligence of a Gold’s Party. YOU FURTHER AGREE TO ASSUME ALL RISK FOR AND HOLD HARMLESS THE GOLD’S PARTIES FROM ANY INJURIES, DISEASE, INFECTION OR MEDICAL DISORDERS RESULTING FROM OR AGGRAVATED OR WORSENED BY USE OF THE SERVICE AND PARTICIPATION IN THE COACHED WORKOUTS THEREIN PROVIDED, INCLUDING HEART ATTACKS, STROKES, HEAT STRESS, SPRAINS, BROKEN BONES AND TORN OR DAMAGED MUSCLES, LIGAMENTS OR TENDONS, WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF A GOLD’S PARTY.
- No Agency or Other Special Relationship. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of the Terms of Service or your use of the Service. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied, or other relationship is created between us and you other than pursuant to the Terms of Service.
- Non-Waiver. Our failure to act on or enforce any provision of the Terms of Service will not be construed as a waiver of that provision or any other provision in the Terms of Service. No waiver will be effective against us unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance.
- Entire Agreement. Except as we expressly agree, the Terms of Service constitutes the entire agreement between us and you with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein. The Terms of Service will inure to the benefit of our successors and assigns.
- No Assignment. You may not assign the Terms of Service or any of the rights or licenses granted hereunder, directly or indirectly, without our prior express written consent. This means that if you dispose of any device on which you have installed the App, such as by sale or gift, you are responsible for deleting the App and any content from your device prior to such disposition. We may assign the Terms of Service, including all its rights hereunder, without restriction.
NOTICE REGARDING APPLE: You acknowledge that the Terms of Service is between us and you only, not with Apple, and Apple is not responsible for the App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third-party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third-party terms, when using the App. Apple, and Apple’s subsidiaries, are third party beneficiaries of the Terms of Service, and upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third-party beneficiary of the Terms of Service. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. If we provide a translation of the English language version of the Terms of Service, the translation is provided solely for convenience, and the English version will prevail.