TraynMe Terms of Service

  1. Acceptance

  1. By clicking the “Accept” button, you agree:
  1. To be bound by the terms and conditions set forth in the Terms of Service; and
  2. That TraynMe may collect and use your personal information in accordance with its Privacy Policy, located at www.ascendfitapp.com/legal/privacy.
  1. TraynMe reserves the right to, at its sole discretion, amend the Terms of Service at any time and without notice, the most current version of which shall always be available at www.ascendfitapp.com/legal/terms. You acknowledge and agree that your continued use of the Services following any amendment of the Terms of Service shall signify your assent to and acceptance of such amended terms and conditions.
  2. Subject to the Terms of Service, if you do not agree to the Terms of Service, or any subsequently amended term or condition thereof, you cannot use the Services, and any Terms of Service previously entered into must forthwith be terminated by you pursuant to Section XIII(a).

  1. Special Consents and Acknowledgements

YOU ACKNOWLEDGE AND AGREE THAT:

  1. IF YOU HAVE AN EMERGENCY, HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING THE SERVICES AND THE CONTENT AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR GO TO THE NEAREST HOSPITAL;
  2. THE INFORMATION CONTAINED WITHIN THE SERVICES AND THE CONTENT IS INTENDED TO BE GENERAL IN NATURE, NOTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT CONSTITUTES MEDICAL ADVICE AND YOU SHOULD NOT RELY ON ANYTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT AS A SUBSTITUTE FOR APPROPRIATE AND TIMELY CONTACT WITH YOUR PHYSICIAN;
  3. TRAYNME DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO: (1) CONTENT FORMING PART OF OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION WORK-OUT PLANS, EXERCISE VIDEOS, AND OTHER SIMILAR CONTENT, WHETHER OR NOT PROVIDED BY OR ON BEHALF OF TRAYNME AND (2) COACHES, INCLUDING WITHOUT LIMITATION THE QUALITY OR CERTIFICATION LEVELS THEREOF, AND THAT INTERACTIONS WITH TRAINERS THROUGH THE SERVICES OR OTHERWISE IS AT YOUR SOLE DISCRETION AND RISK;
  4. YOU SHOULD NEVER CHANGE OR STOP ANY COURSE OF MEDICAL TREATMENT WITHOUT FIRST CONSULTING YOUR PHYSICIAN; AND
  5. PARTICIPATING IN AN EXERCISE PROGRAM OR DIET CAN CAUSE INJURY, AND YOU ELECT TO DO SO ENTIRELY AT YOUR OWN RISK.

  1. User Representations

  1. You represent and warrant to TraynMe that:
  1. You are at least eighteen (18) years of age and have the power and authority to enter into and perform your obligations under these Terms of Service; and
  2. All information provided by you to TraynMe is truthful, accurate, and complete.

  1. License To Use The Services

  1. The Services is proprietary to TraynMe and is protected by U.S. intellectual property laws.
  2. Subject to your compliance with the terms and conditions of the Terms of Service, TraynMe hereby grants to you a revocable, personal, non-exclusive, non-sublicensable, non-assignable, and non-transferable license to use the Services procured and/or purchased by you, or for you, exclusively in the manner set out in the Terms of Service.
  3. All right, title, interest, ownership rights, and intellectual property rights in and to the Services and the trademarks of TraynMe, are and shall remain the property of TraynMe and its licensors, as applicable.
  4. TraynMe reserves all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the Terms of Service grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or TraynMe’s name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the Terms of Service.
  5. Notwithstanding any other term of the Terms of Service, including without limitation Section IV(b), no user shall be allowed or permitted to access or make use of the Services, until such user has entered into the most current version of the Terms of Service.

  1. User Agreement

  1. You agree to:
  1. Maintain the security of your user identification, password, and other confidential information relating to your TraynMe account;
  2. Be solely responsible for the security, confidentiality, and integrity of all messages and the content that you receive, transmit through or store on the Services;
  3. Be responsible for all charges resulting from use of your TraynMe account, including unauthorized use prior to your notifying TraynMe in writing of such use and taking steps to prevent its further occurrence by changing your password; and
  4. Comply with all applicable U.S. laws, statutes, ordinances, rules, regulations, contracts, and applicable licenses regarding your use of the Services or TraynMe.

  1. Fees

TraynMe charges a subscription fee ("Fees") for the use of the Services. TraynMe expressly reserves the right to change the Fees at any time, upon notice to you. By registering for a TraynMe account, you agree to pay TraynMe the Fees for the Services applicable to the account type chosen. The Fees for the Services do not include any payment for telecommunications and computer hardware, software, telecommunications access charges, lines or connections or other equipment and services required to access and use the Services. All Fees, Taxes (as defined herein) and other charges will be billed to your credit card. You are responsible for and shall pay TraynMe all sales, use, value-added, personal property or other tax, duty or levy of any kind, including interest and penalties thereon (collectively, "Taxes") for the use of the Services or resulting from this Agreement, whether imposed now or hereinafter by any governmental entity. You agree to promptly pay TraynMe in the event of any refusal of your credit card issuer to pay any amount to TraynMe for any reason. On any outstanding balance, you agree to pay the costs of collection, including attorney's fees and costs. In the event you fail to pay any amount when due, TraynMe may immediately suspend or terminate this Agreement and your access to the Services.

  1. Payment Processing

Payment processing services for the Services are provided by Stripe and its respective affiliates (referred to herein as the "Payment Processing Services Provider"). You hereby authorize TraynMe to share with the Payment Processing Services Provider the financial information, banking details, transaction information and account information provided by you and/or related to your use of the Services as is reasonably required for the provision of the payment processing features contemplated by the Services (including payment of Fees). You also agree that TraynMe is not responsible or liable for the use or misuse of such financial information, banking details, transaction information and account information by the Payment Processing Services Provider or any third party.

If a Payment Processing Services Provider is utilized to make or receive a payment in connection with your use of the Services, you should be aware that the terms and policies, including privacy and data gathering practices, of the Payment Processing Services Provider apply to your dealings with the Payment Processing Services Provider. Your account and any activities related to providing your personal information will be governed by the Payment Processing Services Provider’s terms and conditions, and the information provided in relation thereto will be governed by the Payment Processing Services Provider’s privacy policy.

If you utilize the payment processing features of the Services, you shall not:

  1. Submit what you believe or know to be a fraudulent charge, refund, dispute or other transaction; or
  2. Use such payment processing features in a manner that is an abuse of or in violation of this Agreement, any terms or policies of the Payment Processing Services Provider, or applicable laws.

  1. Payment Facilitation

  1. If you are a Client:
  1. You understand that use of the Services may result in charges to you for the Services or goods you receive from a TraynMe Coach ("Charges"). After you have received services or goods obtained through your use of the Services, if you utilize the Services in such manner, TraynMe will, through its Payment Processing Service Provider, facilitate your payment of the applicable Charges to the applicable TraynMe Coach (the "Service Provider"). Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Services Provider. You hereby acknowledge and agree that TraynMe is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services. TraynMe is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
  2. Charges paid by you are final and non-refundable, unless otherwise determined by TraynMe or the Services Provider, as applicable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Services, any disruption to the Services, or any other reason whatsoever.
  3. The Services will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your account regardless of your awareness of such Charges or the amounts thereof. TraynMe may occasionally provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
  4. You may only use the Services for legitimate transactions with Service Providers. You are responsible for your relationship with Service Providers. TraynMe is not responsible for the products or services you purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you receive, and for delivery, support, refunds, returns, and for any other ancillary services you receive from Service Providers. You will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services.

  1. If you are a Coach:
  1. If you utilize the Services in such manner, you will receive payment through the Payment Processing Services Provider for any Charges actually paid by a Client related to services or goods provided by you through the Services, less any commissions, transaction fees or other deductions charged by the Payment Processing Services Provider and/or TraynMe. You hereby authorize TraynMe to process all payments due to you through its Payment Processing Services Provider.
  2. You hereby acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that TraynMe is required to withhold by law. You hereby acknowledge and agree that TraynMe is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services, or for any failure by a Client to make payment to you in connection with the Services.
  3. You hereby acknowledge and agree that you shall be responsible for all currency conversion charges and responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on any Charges. You hereby agree to defend, indemnify and hold harmless TraynMe and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts.
  4. You may only use the Services for legitimate transactions with Clients. You are responsible for your relationship with Clients. TraynMe is not responsible for the products or services you publicize or sell, or that your Clients purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to Trainees.
  5. It is your responsibility to ensure that your Clients understand the purpose, amount, and conditions of charges you submit through the Services. When using the Services you agree to:
  1. Accurately communicate, and not misrepresent, the nature of any product or service, and the amount of the charge or transaction in the appropriate currency;
  2. Provide Clients a meaningful way to contact you in the event that the product or service is not provided as described; and
  3. Not use Service to sell products or services in a manner that is unfair or deceptive, exposes Clients to unreasonable risks, or does not disclose material terms of a purchase in advance.
  1. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services. You are solely responsible for providing support to Clients regarding transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. TraynMe is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.
  2. You hereby represent and warrant that:
  1. Any information you provide us about your business, products, or services is accurate and complete;
  2. Any Charges represent a transaction for permitted products or services, and any related information accurately describes the transaction;
  3. You will fulfill all of your obligations to Clients and will resolve all disputes with them;
  4. You will comply with all laws applicable to your business and use of the Services; and
  5. You will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services.

  1. Payment of Fees to TraynMe

You acknowledge and agree that:

  1. UNTIL THE TERMS OF SERVICE IS TERMINATED BY YOU OR TRAYNME IN ACCORDANCE WITH SECTION XIII, YOU SHALL PAY TO TRAYNME MONTHLY OR ANNUAL FEES IN ADVANCE BASED ON THE USAGE PLAN SUBSCRIBED TO BY YOU DURING THE APPLICABLE PERIOD AND ALL IN-APPLICATION PURCHASES MADE BY YOU AND YOUR AGENTS DURING SUCH PERIOD, CALCULATED IN ACCORDANCE WITH THE FEES;
  2. THE FEES SHALL BE PAID BY CREDIT CARD OR IN ANOTHER FORM OF IMMEDIATELY AVAILABLE FUNDS ACCEPTABLE TO TRAYNME, ACTING REASONABLY, AND IF YOU PROVIDE YOUR CREDIT CARD DETAILS THROUGH THE SERVICES OR OTHERWISE, YOU AGREE TO TRAYNME AND ITS PAYMENT PROCESSING PROVIDER CHARGING THE FEES TO YOUR CREDIT CARD WITHOUT REQUIRING ANY FURTHER NOTICE TO, OR CONSENT FROM, YOU, AND YOU FURTHERMORE REPRESENT AND WARRANT THAT SUCH FEE PAYMENTS SHALL BE MADE WHEN DUE;
  3. If you fail to pay Fees when due, TraynMe shall be entitled to take any action set out in Section XIII(b), including without limitation changing your Usage Plan to a Trial Usage Plan, and all overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse TraynMe for all expenses (including reasonable attorney fees) incurred by TraynMe to collect any amount that is not paid when due;
  4. You shall be responsible for any and all currency conversion charges as well as sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial or local governmental entity on any Fees other than any taxes imposed on, or with respect to, TraynMe’s income;
  5. Notwithstanding termination of the Terms of Service, you shall not be entitled to a refund from TraynMe for any Fees or any pro rata portion of any Fees paid or payable to TraynMe pursuant to the Terms of Service: (A) in respect of any monthly billing cycle that had already commenced at the date of such termination, if you are subscribed to a monthly Usage Plan; and (B) in respect of any annual billing cycle that had already commenced at the date of such termination, if you are subscribed to an annual Usage Plan (by way of example, if you subscribe for an annual Usage Plan on July 5, 2015 and terminate the Terms of Service on July 10, 2016, then you shall be liable to pay the annual Fee for July 5, 2015 to July 4, 2016 and the annual Fee for July 5, 2016 to July 4, 2017, and you shall not be entitled to a refund from TraynMe in relation to any such Fees); and
  6. TraynMe may, from time to time in its sole discretion, offer Trial Usage Plans, and that: (i) you shall comply with any and all additional terms, restrictions and/or limitations imposed by TraynMe on any such Trial Usage Plan; and (ii) TraynMe may at any time and for any reason, without liability to you or any other person alter, amend, modify or cancel any aspect of such Trial Usage Plans, including without limitation, the term, access rights, Fees, nature, scope, features, functionality, operation and Content associated therewith.

  1. Content

  1. Unless otherwise expressly set out in the Terms of Service, all right, title, interest, ownership rights and intellectual property rights in and to Your Content, and your trademarks, are and shall remain your property, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Section XIII.
  2. You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) other users of the Services; (ii) TraynMe and the its Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. TraynMe shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Services is not shared between TraynMe Users (unless you select otherwise), but you acknowledge and agree that TraynMe cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.
  3. You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize TraynMe to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and the Terms of Service without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant TraynMe an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, exclusively for the purpose of providing the Services.
  4. TraynMe reserves the right to, with or without notice, remove Your Content for any reason whatsoever, including without limitation any of Your Content that: (i) allegedly infringes on another’s intellectual property rights; (ii) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) is considered adult or pornographic; (iv) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (v) solicits personal information from anyone under 18; (vi) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; or (viii) interferes or attempts to interfere with the proper working of the Services, disrupts or attempts to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, prevents or attempts to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.
  5. You acknowledge and agree that TraynMe has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at its sole discretion do so at any time. TraynMe does not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that TraynMe does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and TraynMe expressly disclaims any and all liability in connection therewith. You acknowledge and agree that TraynMe assumes no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.
  6. TraynMe contracts a third party to store Content, including Your Content, and, while these Terms of Service are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by TraynMe in its sole discretion. Following any cancellation of your account, TraynMe is under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these Terms of Service, TraynMe shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.
  7. If you are a Coach and you receive Content or other information through the Services that constitutes the Personal Information of a Client, including without limitation any fitness or health tracking data or nutritional data of a Client, you agree to only use and disclose such information for the purpose of providing fitness training and related services to such Client, and to use reasonable means appropriate to the sensitivity of such information to protect it from unauthorized access, collection, use and disclosure.

  1. User Permissions and Restrictions
  1. You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.
  2. You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.
  3. You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.
  4. You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.
  5. You shall use the Services in accordance with the Terms of Service and any and all applicable laws and regulations. TraynMe reserves the right to investigate and take appropriate action against anyone who, in TraynMe’s sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section XIII(b).

  1. Equipment

You shall be solely responsible for providing, maintaining and ensuring compatibility with the Services, all hardware, software, electrical and other physical requirements for your use of the Services, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Services.

  1. Third Party Services

The Services may provide you with access to services (including video content related services) provided by third parties (each a "Third Party Service"). Your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from TraynMe and the Services, and TraynMe does not endorse, and has no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not make any claim against TraynMe arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services.

  1. Termination, Modification and Suspension

  1. SUBJECT TO SECTION IX, YOU MAY TERMINATE THE TERMS OF SERVICE AT ANY TIME AND FOR ANY REASON BY INITIATING AND COMPLETING THE ACCOUNT CANCELLATION PROCESS SET OUT AT https://app.ascendfitapp.com/settings/delete-account AND DISCONTINUING YOUR USE OF THE SERVICES.
  2. TRAYNME MAY AT ITS SOLE DISCRETION AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE: (I) BAN ANY COMPUTER OR DEVICE FROM ACCESSING THE SERVICES; (II) PREVENT ANY PERSON FROM ACCESSING THE SERVICES; (III) TERMINATE, MODIFY, SUSPEND OR DISCONTINUE ANY USAGE PLAN, ACCESS ID, TERMS OF SERVICE OR SERVICE; (IV) REMOVE ANY OF YOUR CONTENT; AND/OR (V) CHANGE YOUR USAGE PLAN TO A TRIAL USAGE PLAN.

  1. Warranty Disclaimer
  1. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF TRAYNME OR ANY SERVICE PROVIDER), AND ANY AND ALL INTERACTIONS BETWEEN YOU AND SERVICE PROVIDERS THROUGH THE SERVICES OR OTHERWISE, SHALL IN ALL CASES BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TRAYNME AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM TRAYNME OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.
  2. TRAYNME MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES. TRAYNME DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. TRAYNME SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.
  1. Limitation of Liability
  1. IN NO EVENT SHALL TRAYNME AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS DIRECTLY OR INDIRECTLY, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF TRAYNME OR ANY SERVICE PROVIDER), INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT; (III) UNAUTHORIZED ACCESS TO OR USE OF TRAYNME’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) TERMINATION OF ACCESS TO THE SERVICES OR REMOVAL OF ANY CONTENT BY TRAYNME; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD-PARTY; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, WHETHER THE FOREGOING IS BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. THE TOTAL AGGREGATE LIABILITY OF TRAYNME FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE AND/OR USE OF, OR ACCESS TO, THE SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU, NOT TO EXCEED THE LESSER OF $100.00 AND THE AMOUNT ACTUALLY RECEIVED BY TRAYNME FROM YOU PURSUANT TO THE TERMS OF SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY ACTION COMMENCED AGAINST TRAYNME FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN.
  3. TRAYNME DOES NOT CONTROL CONTENT AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT TRAYNME SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
  4. YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THE TERMS OF SERVICE YOU HEREBY GIVE UP YOUR RIGHT TO (I) HAVE A TRIAL BY JURY; AND (II) PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY DISPUTE RELATED TO THE TERMS OF SERVICE.
  5. ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

  1. Indemnity by You

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS TRAYNME AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM: (I) YOUR USE OF OR ACCESS TO THE SERVICES; (II) ANY THIRD PARTY USE OF, OR ACCESS TO, YOUR ACCESS ID; (III) YOUR VIOLATION OF ANY TERM OF THE TERMS OF SERVICE; (IV) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION YOUR CONTENT INFRINGING ANY INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT), OR PRIVACY RIGHT; (V) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD-PARTY. (VI) ANY DISPUTE OR CLAIM ARISING BETWEEN YOU AND YOUR CLIENTS OR COACHES IN ANY WAY RELATED TO OR CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO PRODUCTS OR SERVICES PROCURED OR PURCHASED THROUGH THE SERVICES; OR (VII) ANY FRAUDULENT TRANSACTIONS OR CHARGES SUBMITTED OR PERMITTED BY YOU OR ON YOUR BEHALF OR IN WHICH YOU PARTICIPATE IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY PAYMENT PROCESSING FEATURES THEREOF. THIS DEFENSE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMS OF SERVICE AND YOUR USE OF THE SERVICES.

  1. Assignment

The Terms of Service, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by TraynMe without restriction.

  1. Data Usage and Charges

The Services may use information and data transmission networks operated by third-parties to send data, information and Content from a computer or device to TraynMe’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.

XX. Updates and Availability of The Services

  1. You acknowledge and agree that:
  1. TraynMe may from time to time, at its sole discretion, make Updates available to you, but is under no obligation to do so;
  2. Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at the sole discretion of TraynMe;
  3. Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the Terms of Service; and
  4. There may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

XXI. General

  1. Nothing in the Terms of Service shall be construed to constitute TraynMe and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of TraynMe or waive any right, interest or claim that TraynMe may have, other than as expressly set out herein, or with the prior written consent of TraynMe.
  2. If there is any dispute between you and TraynMe about or involving the Services or the Terms of Service, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of the State of Michigan. You hereby agree to submit to the exclusive jurisdiction of the courts in the State of Michigan with respect to any claim, proceeding or action relating to or otherwise arising out of the Terms of Service or your access to or use of the Services, howsoever arising, provided always that TraynMe may seek and obtain injunctive relief in any jurisdiction.
  3. The Terms of Service constitutes the whole legal agreement between you and TraynMe and governs your use of the Services (but excluding any services which TraynMe may provide to you under a separate written agreement), and completely replaces and supersedes any prior and contemporaneous agreements between you and TraynMe in relation to the Services. Notwithstanding the foregoing, you and TraynMe shall be entitled to enter into an additional superseding agreement which by its terms may expressly alter, amend or terminate the Terms of Service.
  4. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and TraynMe’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
  5. Sections IV(c), 4(d), VII, IX(a)(i), IX(a)(ii), IX(a)(iii), IX(a)(iv), IX(a)(v), VIII, XI(a), XI(b), XI(c), XI(d), X through XXI, and such other provisions of the Terms of Service which by implication from its nature is intended to survive the termination or expiration of the Terms of Service, shall survive termination or expiration of the Terms of Service.

XXII. Contact TraynMe

You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to TraynMe at support@traynmeapp.com.

DEFINITIONS AND INTERPRETATION

“Access IDs” means the unique identification names and corresponding passwords assigned to a TraynMe Users and the Coaches and Clients who have been authorized to access and use the Services procured by such TraynMe User, and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.

“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors and/or other authorized representatives, and “Agent” shall be construed accordingly.

“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.

“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by TraynMe, which is not otherwise included in the cost of the Usage Plan subscribed to by a TraynMe User.

“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.

“Services” means the Services offered or made available by TraynMe, including without limitation the TraynMe software as a service platform, and any website, application, or widget associated therewith, as modified by TraynMe by way of Updates from time to time.

“Client” means a person directly or indirectly accessing or making use of the Services procured by a TraynMe User as a client, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness training services from the TraynMe User and/or a Coach, and “Clients” shall be construed accordingly.

“Coach” means a person directly or indirectly accessing or making use of the Services procured by a TraynMe User as a coach, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training services to one or more Clients, and “Coaches” shall be construed accordingly.

“Trial Usage Plans” means the free or discounted Usage Plans, and “Trial Usage Plan” shall be construed accordingly.

“TraynMe User” means a person who procures Services from TraynMe, including without limitation, by placing an order for a specific Usage Plan with TraynMe, thereby allowing access to, and use of, such Service by the TraynMe User and the related Coaches and Clients, and “TraynMe Users” shall be construed accordingly.

“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.

“Usage Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Usage Plans, on a no-charge basis, by TraynMe to TraynMe Users, each such plan allowing the TraynMe User and a certain set number of Coaches and Clients to access and use the Services or certain features thereof procured by the TraynMe User, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.

“You”, “your” and/or “yourself” means either the TraynMe User, Coach, or Client entering into the Terms of Service, as applicable.

“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products (including without limitation any media, including photos, videos and accompanying music), fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services).

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