Effective Date: January 26, 2018
1. YOUR ACCEPTANCE OF TERMS
These TOU, together with any additional terms and conditions presented to you upon your use or access of the Website, govern your use of all of the following (collectively, the “Services”):
(i) this website (the “Website”), and the information, services, products, materials and programs offered through the Website, including but not limited to, any and all text, videos, software, images, graphics, illustrations, trademarks, copyrights, logos and any other content or services developed, contained, or accessible by means of the Website (collectively, “Company Content”);
(ii) any mobile applications or other downloadable applications (“Applications”).
By using any Application to enable, augment or enhance your use of the Website, you are explicitly confirming your acceptance of the terms and conditions of the end user license agreement associated with the Application provided at download or installation, or as may be updated from time to time. Any inconsistencies between terms and conditions shall be construed so that the more restrictive terms and conditions shall apply.
If you do not agree, are unwilling or unable to comply with the provisions contained in these TOU, you must not access or use the Website or any of the Services made available through the Website.
ARBITRATION NOTICE: UNLESS YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
2. CHANGES TO THESE TOU
We may revise and update these TOU from time to time in our sole discretion by updating this posting, or by sending you email or written notification, and you consent to receive such notifications. All changes are effective immediately when we post them, and apply to all access to and use of the Website, or any applicable Services thereafter.
You are bound by any revisions and should therefore periodically revisit this page to review the current TOU and make sure that you add firstname.lastname@example.org to your email address book to help ensure you receive email notification from us. The Company is not responsible for any automatic filtering employed by your network provider in connection with email notifications. Your use of the Website or any of the Services after the effective date of any revision to these TOU constitutes your agreement to any updated terms of these TOU.
If you do not agree to the modified terms and conditions, you should discontinue using the Website and/or the Services.
3. ACCESSING THE WEBSITE
The public portions of our Website do not require registration to browse and enjoy, and are offered and intended only for the use by persons aged 18 years or older who reside in, access, or use the Website from within the United States of America, and who comply with and agree to abide by these TOU.
By using the Website, you represent and warrant that you are of legal age to form a binding contract with the Company, that your access and use of the Website shall be solely for their intended purposes as described in these TOU, shall comply with all applicable laws, rules and regulations (collectively, ”Laws”), as the same may be amended.
We reserve the right to withdraw, terminate 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 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 part of the Website, or the entire Website, to users, including registered members of the Company’s fitness facility (“Members”). You are responsible for (i) making all arrangements necessary for you to have access to the Website; and (ii) ensuring that all persons who access the Website through your internet connection are aware of these TOU and comply with them.
4. ACCESS TO MEMBER-ONLY SERVICES
Access to our Member-only Services and other non-public Member-only areas of our Website are offered and intended only for Members in connection with Free Trial Memberships or Paid Memberships, and are subject to your written consent to the terms and conditions of the Company’s membership agreement, and all other agreements, rules, policies and guidelines required by the Company of its Members.
Members entitled to use and access any of the Member-only Services are those individuals who have agreed to be bound by the terms and conditions set forth in the immediately preceding sentence, and who have either purchased a membership to the Company’s fitness center (“Paid Membership”) for the period of time for which it has paid the Company (the “Membership Period”), or been granted a free trial subscription (“Free Trial Membership”) - Any Free Trial Membership will be treated hereunder in the same manner as a Paid Membership subject to these TOU.
To speak with a Company representative about becoming a Member, please contact us using the contact information set forth in Section 18, or submit a request for information via our Contact Us webpage, and a representative will contact you.
The Company reserves the right to refuse to provide you access to the Services or to permit your registration or access to a Member Account for any reason, in its sole discretion.
If you choose, or are provided with, a user name, password or any other piece of information (“Member Credentials”) as part of our security procedures in connection with your registration for an online account (“Member Account”) to access any Member-only services , 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 any Member-only Services using your user name, password or other security information. 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.
By registering/logging into your Member Account, or any other Member-only portion of the Website, you represent and warrant that: (a) you are the Member who registered for the online service you are accessing, and that you have not selected a user name of another person with an intent to impersonate that person; (b) you are using the service only for permitted purposes; (c) you are not, or are not acting on behalf of, a competitor of the Company; (d) you will immediately notify us of any unauthorized use of your Member login/password credentials or Member Account, or any other breach of security with respect to your Member Credentials. Please notify email@example.com, with subject line, “Misuse of Member Account” of any potential unauthorized uses of your Member Account or Member Credentials.
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 WE BELIEVE OR SUSPECT THAT ANY OF YOUR ACTIONS OR INACTIONS HAVE VIOLATED OR ARE INCONSISTENT WITH THESE TOU, VIOLATE THE RIGHTS OF THE COMPANY OR ANY THIRD PARTY, OR VIOLATE THE LAW. YOU AGREE THAT MONETARY DAMAGES MAY NOT PROVIDE A SUFFICIENT REMEDY TO THE COMPANY FOR VIOLATIONS OF THESE TOU, AND YOU HEREBY CONSENT TO INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR SUCH
We may make available for purchase, subscription, or otherwise through the Services certain products or services, including membership agreements (each, a “Product”). If you desire to purchase, subscribe, or otherwise obtain any of our Products, you may be asked to supply certain relevant information, such as your payment card number and its expiration date, your name and billing address. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT TO USE ANY PAYMENT CARD OR PAYMENT SERVICE THAT YOU SUBMIT IN CONNECTION WITH A TRANSACTION. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating transactions. Verification of information may be required prior to the acknowledgment or completion of any transaction. By making a transaction, you represent that the applicable Products purchased, subscribed, or otherwise obtained through the Services will be used only in a lawful manner.
The Company reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Product; to impose conditions on the honoring of any coupon, discount or similar promotion; to bar any user from making any transaction; and to refuse to provide any user with any Product. We make no representations as to the accuracy, validity, timeliness, completeness or descriptions of Products (including any features, specifications and prices contained therein), and such information and the availability of any Product (including the validity of any price, promotion, coupon or discount) is subject to change at any time without notice.
Without limiting the foregoing, the Company reserves the right to revoke any offer at any time for any reason, and correct any errors, inaccuracies or omissions, including after a transaction has been submitted (whether or not the order has been confirmed and your credit card charged). If a transaction is cancelled after you have been charged, the Company will issue a credit to your credit card account or bank account (for debit card transactions) in the amount of the charge (see your individual bank’s policies as to when this amount will be credited to your account). Refunds will be subject to the Company’s applicable refund and exchange policies. You agree to pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred. In addition, you are responsible for any taxes applicable to your transactions. The receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a product or service.
6. INTELLECTUAL PROPERTY RIGHTS
The Company Content, and the design, selection and arrangement thereof, are owned by the Company, 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 TOU 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:
You must not:
You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
Any use of the Company Content not expressly permitted by these TOU is a breach of these TOU and may violate copyright, trademark and other laws. The Company will enforce its intellectual property rights to the fullest extent of the law.
7. PROHIBITED CONDUCT
In accessing or using the Website or any of the Services, you hereby acknowledge and agree that you shall not engage in any of the following prohibited activities:
8. LINKS FROM THE WEBSITE
The Company does not endorse or make any representations or warranties with respect to third party websites, products, services, advertisers or information accessible via the Website (“Third Party Materials”), and these TOU do not govern any such Third Party Materials. The Company does not review sites that link to the Website, or any third party sites (including social media plug-ins) which you may access or link to through the Website, and is not responsible for the content or the privacy policies of any off-Website pages. Your linking to or accessing any Third Party Materials is at your own risk. You are encouraged to review the terms and conditions and privacy policies of all such third-party sites, and you hereby release the Company from any and all losses, liability and damages arising from your access or use of any third party websites and/or Third Party Materials.
9. 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. 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, COMPANY CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE IS AT YOUR OWN OPTION AND RISK. THIS WEBSITE, COMPANY CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE ARE PROVIDED TO YOU ON AN "AS IS" AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
THE COMPANY DOES NOT GUARANTEE ANY RESULTS FROM USING THE SERVICES. THE COMPANY DOES NOT WARRANT THAT THE COMPANY CONTENT IS CORRECT, COMPLETE, SECURE, ACCURATE, RELIABLE, OR FREE FROM ERRORS AND OMISSIONS; THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS; THAT THE SERVICES WILL BE UN-INTERRUPTED AND SECURE, FREE FROM VIRUSES, DEFECTS, OR OTHER HARMFUL COMPONENTS; THAT DEFECTS WILL BE CORRECTED; AND YOU ACKNOWLEDGE AND AGREE THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, DEVICE, EQUIPMENT OR OTHER PROPERTY THAT RESULTS FROM YOUR USE OF THE SERVICES.
YOU ACKNOWLEDGE THAT A NUMBER OF INHERENT RISKS EXIST IN ALL INTERNET TRANSACTIONS, INCLUDING BUT NOT LIMITED TO THEFT AND DAMAGE CAUSED BY HACKERS AND VIRUSES, AND AS SUCH THE COMPANY MAKES NO GUARANTEES OR WARRANTIES OF ANY KIND AS TO THE SECURITY OR SAFETY OF ANY INFORMATION TRANSMITTED VIA YOUR MEMBER ACCOUNT, INCLUDING ANY PAYMENT INFORMATION, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY BREACH THEREOF.
THE COMPANY STRIVES FOR 24/7 ACCESS TO THE SERVICES, BUT IT SHALL NOT BE RESPONSIBLE FOR, AND DISCLAIMS ANY AND ALL LIABILITY FOR ANY DISRUPTION TO THE SERVICES, OUTAGES, DOWN-TIME, OR THE LIKE, REGARDLESS OF CAUSE OR DURATION.
10. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER THE COMPANY, NOR ANY OF ITS AGENTS, OFFICERS, DIRECTORS, EMPLOYEES, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES (THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF YOUR ACCESS TO, OR USE OF, THE SERVICES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR ANY OTHER TANGIBLE OR INTANGIBLE LOSSES RESULTING FROM OR ARISING OUT OF YOUR ACCESS, USE, OR INABILITY TO ACCESS OR USE, ANY OF THE SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
UNDER NO CIRCUMSTANCES WILL ANY OF THE RELEASED PARTIES BE RESPONSIBLE FOR, AND ALL LIABILITY IS HEREBY DISCLAIMED FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM (I) HACKING, TAMPERING, VIRUSES OR OTHER UNAUTHORIZED ACCESS OF THE WEBSITE, COMPANY CONTENT, THE SERVICES, YOUR MEMBER ACCOUNT OR ANY OF THE INFORMATION CONTAINED THEREIN; (II) ERRORS OR OMISSIONS IN ANY CONTENT; (III) ILLEGAL, OFFENSIVE, OR DEFAMATORY CONDUCT OF ANY THIRD PARTY; (IV) SERVICE INTERRUPTIONS; (V) DATA LOSS OR DATA CORRUPTION ARISING FROM YOUR ACCESS OR USE OF THE SERVICES; OR (VI) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY KIND ARISING FROM YOUR ACCESS OR USE OF THE SERVICES.
IN NO EVENT SHALL ANY OF THE RELEASED PARTIES BE LIABLE TO YOU FOR ANY CLAIMS, CAUSES OF ACTION, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS ARISING FROM YOUR USE OF THE SERVICES IN AN AMOUNT EXCEEDING THE AMOUNT YOU HAVE PAID TO THE COMPANY HEREUNDER, OR ONE HUNDRED DOLLARS ($100), WHICHEVER IS LESS.
You agree to defend (at the Company’s election and request), indemnify and hold the Released Parties harmless from and against any and all third-party claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney's fees and costs, arising out of or in any way connected with any of the following (including as a result of your direct activities using the Website, Company Content, Products, or Services) in any manner other than as expressly permitted under these TOU. You will cooperate as fully required by the Company in the defense of any claim. The Company reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the Company’s prior written consent.
12. GOVERNING LAW AND JURISDICTION
These TOU are governed by and construed in accordance with the laws of the State of New Hampshire, without giving effect to any principles of conflicts of law. For any action at law or in equity relating to the arbitration provision of these TOU, the Excluded Disputes, or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with the Company exclusively in the United States District Court for the District of New Hampshire, or the appropriate state court located in Merrimack County, New Hampshire, and to submit to the personal jurisdiction of the courts located in New Hampshire for the purpose of litigating all such disputes.
If any provision of these TOU is held to be unlawful, void, or for any reason unenforceable during arbitration or by a court of competent jurisdiction, then that provision will be deemed severable from these TOU and will not affect the validity and enforceability of any remaining provisions. The Company’s failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. The Company reserves the right to change this dispute resolution provision, but any such changes will not apply to disputes arising before the effective date of the amendment. This dispute resolution provision will survive the termination of any or all of your transactions with the Company.
Except for disputes that qualify for small claims court, and unless you opt out of arbitration pursuant to the opt-out procedure below, you agree that any and all disputes arising between you and the Company relating to your access and use of the Services, these TOU, and/or rights of privacy and/or publicity shall be resolved exclusively through final and binding arbitration rather than in court. Your rights will be determined by a neutral arbitrator, not a judge or jury. YOU ACKNOWLEDGE AND AGREE THAT BY OPTING OUT OF ARBITRATION IN ACCORDANCE WITH THE BELOW PROCEDURES, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
Arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) including its Supplementary Procedures for Consumer-Related Disputes, available at www.adr.org, and you and the Company hereby expressly waive trial by jury. Your share of arbitration fees and arbitrator compensation shall be governed by such rules. You may bring claims only on your own behalf. Neither you nor the Company will participate in a class action or class-wide arbitration for any claims covered by this agreement and you have no right or authority to pursue a dispute in a purported representative capacity on behalf of the general public or any other persons. Arbitration may be conducted in person, through the submission of documents, by phone or online. If conducted in person, you and the Company agree to arbitrate the dispute through the AAA center in Boston, Massachusetts, unless another location is mutually agreed upon between you and the Company. The arbitrator must follow applicable law. Any ruling, decision or award by the arbitrator, including all aspects of arbitration proceedings, will be strictly confidential for the benefit of all parties. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these TOU.
You may opt out of this agreement to arbitrate. If you do opt out, neither you nor the Company can require the other to participate in an arbitration proceeding. To opt out, you must send written notice of your decision to opt out to the Company using the contact information listed below. Notice must be sent to the Company within thirty (30) days of your initial registration to use any of the Services, whether through a Free Trial Membership, Paid Membership, or downloading an Application.
Your written notice must include: your name and address, telephone number and email address, and a clear statement of your intention to opt out of this arbitration agreement. Written notice shall be sent to: 43° North, LLC, c/o Foxfire Property Management, P.O. Box 1438, Concord, New Hampshire 03302, ATTN: Arbitration Opt-Out.
Failure to send written notice in accordance with this provision shall mean that you are bound to arbitrate disputes in accordance with these TOU.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with the Company.
14. LIMITATION ON TIME TO FILE CLAIMS
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TOU OR THE WEBSITE OR ANY SERVICES ACCESSED THROUGH THE WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
15. ASSIGNMENT AND WAIVER
The Company may assign these TOU at its sole discretion. You may not assign, sublicense, or otherwise transfer these TOU, or the limited license granted to you hereunder, in whole or in party to any other person, entity, or organization. No waiver of any provision of these TOU shall be deemed a further and continuing waiver of such term or any other term. Any failure by the Company to assert any right or provision hereunder shall not constitute a waiver of such right or provision.
16. ENTIRE AGREEMENT
17. NOTICE PROCEDURES
Notices required by law, permitted hereunder, or in connection with marketing or other business related purposes may be provided to you, via your most recent email on file, through written or hard copy notice, or through conspicuous postings on the Website. You hereby consent to the receipt of such notices, provided that you may elect to opt out of certain means of communication (i.e. such as marketing emails).
Under California Civil Code Section 1789.3, California users of the Services are provided with the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
18. CONTACT INFORMATION
If you have any questions concerning any of the terms and conditions set forth in these TOU, or your experience with the Services, please contact us at: firstname.lastname@example.org, (603) 228-2151 x 311, or write to us at: 43° North, LLC, c/o Foxfire Property Management, P.O. Box 1438, Concord, New Hampshire 03302.