Last updated 9-30-2016
This Agreement (“Terms”) is a contract between you and The Social Fitness Network LLC (“SFN”) and governs your access and use of any websites, content, mobile applications, products or services owned or operated by SFN (collectively the “Network”). If you are using the Network as a gym or other service provider, your use of the Network is further governed by the Partner Terms and Conditions.
ARBITRATION NOTICE: UNLESS YOU OPT-OUT AS PROVIDED IN THE ARBITRATION AGREEMENT BELOW, YOU AGREE THAT ANY DISPUTES BETWEEN YOU AND SFN WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
a) By accessing or using the Network, you agree to these Terms. If you do not agree to these Terms, you may not access or use the Network.
b) SFN may amend these Terms at any time, in its sole discretion. Any such amendments shall be effective immediately upon SFN’s notice to you thereof, which notice may be given by posting the updated Terms to the Network, by email or by any other reasonable means. Any access or use of the Network by you after such notice has been given shall constitute your acceptance of such amendments.
c) Additional terms or policies, as established or modified from time to time by SFN in its sole discretion, may apply to your membership. Any such additional terms or policies shall be effective immediately upon SFN’s notice to you thereof, which notice may be given by posting the additional terms or policies to the Network, by email or by any other reasonable means. Any such additional terms or policies are hereby incorporated by reference into these Terms. In the event of any conflict between any such additional terms or policies and these Terms, these Terms shall control.
2. SFN NETWORK
a) SFN is a monthly subscription membership that enables you to attend fitness, martial arts, and recreational classes and utilize other services offered or operated by fitness studios, gyms, or trainers that partner with SFN (such classes and services, collectively, “Classes,” and such fitness studios, gyms and trainers, collectively, “Member Gyms”). SFN itself is not a fitness studio, gym or trainer and does not own, operate or control any of the Classes or Member Gyms.
b) As an SFN member, you will be permitted (subject to any applicable limitations) to attend any Classes included in SFN’s schedule, as posted to the Network from time to time (the “Schedule”). SFN reserves the right to change the Schedule at any time. Reservations may be required for certain Classes. The availability of certain Classes may be limited based on space or any demographic, geographic, health or other criteria as SFN or the applicable Member Gym may establish from time to time.
c) Varying membership plans with differing conditions and limitations may be offered. SFN reserves the right to modify, terminate or otherwise amend any membership plan at any time.
d) SFN does not guarantee the availability of any particular Classes or Member Gyms. Classes and Member Gyms and their availability may change over time.
e) Your SFN membership is personal you. You may not create more than one account or transfer or gift any rights of your membership to any other person, including other SFN members. You are solely responsible for any activity that occurs through your account. You may not use SFN for commercial purposes.
3. MEMBERSHIP AND BILLING
a) Your membership starts on the date you complete the registration process and submit to SFN a current, valid, accepted payment method (the “Start Date”). The membership term is one month and will automatically renew, for successive one month periods, each month on the same day of the month as the Start Date (or, if such month does not include such day, the last day of the month) (each, a “Renewal Date”), until your membership is canceled or terminated. By completing the registration process and submitting your payment method, you authorize SFN to charge to you, via such payment method, the applicable fees as described in these Terms.
b) You will pay SFN a monthly membership fee in the applicable amount, as posted on the Network or otherwise communicated to you by SFN (subject to any promotions or special offers made or offered by SFN). The monthly membership fee will be charged to you, via your on-file payment method, on the Start Date and on each Renewal Date, until your membership is canceled or terminated.
c) In addition to the monthly membership fee, you may be required to pay SFN other fees in connection with your use of the Network, such as sign-up fees, taxes, cancellation fees, missed class fees, late fees or additional fees for special products or services, all as posted on the Network or otherwise communicated to you by SFN. Such fees, to the extent applicable, will be charged to you via your on-file payment method.
d) All fees, pricing and billing dates are subject to change by SFN at any time in its sole discretion. Unless otherwise determined by SFN, any such changes will take effect at the start of the next billing cycle after such changes have been posted to the Network or otherwise communicated to you by SFN.
e) All payments made by you to SFN are nonrefundable, even if your membership is later canceled or terminated, unless otherwise agreed by SFN.
f) Member Gyms may charge equipment or other amenity fees in connection with Classes or additional fees for classes or services not included in the Schedule. You will be directly responsible to such Member Gyms for any such fees.
g) Any amounts due to SFN that are not collected on the date charged, whether due to insufficient funds, canceled card accounts, or any other reason, will remain your obligations to SFN. SFN will continue charging your on-file payment method unless and until you update your account with a different current, valid, accepted payment method. SFN may terminate your membership at any time if unpaid amounts are outstanding.
h) You may terminate your membership at any time by logging into your account and cancelling under your billing preferences. Any such termination will be effective on the last day of the then-current billing cycle. Please give at least five (5) business days before the next billing date for cancellation to take effect. THERE ARE NO REFUNDS OR CREDITS FOR PARTIAL-MONTH MEMBERSHIP PERIODS.
4. TERMINATION OR MODIFICATION BY SFN
a) SFN may terminate, cancel, deactivate or suspend your membership or access to or use of the Network (or any portion thereof) or any orders placed, at any time, for any violation of these Terms or any other any reason, in SFN’s sole discretion, without any prior notification. Upon any such termination, cancelation, deactivation or suspension, your access to account information may be restricted or terminated. The Network is not a backup service, and you are solely responsible for backing up and maintaining duplicate copies of your content.
b) SFN may discontinue, modify or alter any aspect, feature or policy of the Network, at any time, in SFN’s sole discretion.
c) SFN reserves the right (but has no obligation) (i) to monitor any content you post to the Network to determine compliance with these Terms and to satisfy any law, regulation, or government request, (ii) to remove from the Network any content you post for any violation of these Terms or any other any reason, in SFN’s sole discretion, without any prior notification, and (iii) to report any suspected fraudulent, abusive, or illegal activity to appropriate law enforcement authorities.
5. ELIGIBILITY; REGISTRATION; PASSWORD.
a) In order to use the Network, you must complete the registration process by providing SFN with certain information as prompted by the applicable registration form(s). You represent that all such information is true, accurate and complete as of the time of registration, and you agree to update your information as necessary to maintain its truth, accuracy and completeness.
b) You agree to choose a strong and secure password and keep your password secure and confidential. You agree to notify SFN immediately of any unauthorized use of your account or any other breach of security with respect to your access to or use of the Network.
c) You need to be at least 18 years old to use the Network. By completing the registration process, you represent that you are 18 years of age or older.
d) You are responsible for obtaining and maintaining all hardware, software and other equipment and internet, network, data and other services needed for access to and use of the Network and all charges related thereto.
7. PROHIBITED CONDUCT.
In connection with your access to or use of the Network, you shall not:
- Harass, threaten, or defraud users, clients or staff of SFN or any Member Gym;
- Post any inappropriate, profane, defamatory, obscene, indecent, hateful or unlawful content;
- Make any unsolicited offers, advertisements, proposals, or send junk mail to other users, clients or staff of SFN or any Member Gym;
- Impersonate another person or access another person’s account without permission;
- Share SFN-issued passwords with third parties or encourage any others to do so;
- Permit third parties, including other SFN members, to use any Classes booked under your membership;
- Misrepresent the source, identity, or content of any information you transmit via the Network, including falsifying or deleting any copyright management information;
- Upload any material (e.g. virus) that is damaging to computer systems or data of SFN or any users of the Network;
- Use the Network in any manner that could damage, disable, overburden, or impair it or interfere with any other party’s use and enjoyment of the Network;
- Attempt to gain unauthorized access to the Network, or any part of the Network, other accounts, computer systems or networks connected to the Network, or any part of them, through hacking, password mining, or any other means or interfere or attempt to interfere with the proper working of the Network or any activities conducted on the Network;
- Remove, circumvent, disable, damage or otherwise interfere with security-related features of the Network, any features that prevent or restrict use or copying of any content accessible through the Network, or any features that enforce limitations on the use of the Network or the content therein;
- Modify the Network in any manner or form, or use modified versions of the Network, including (without limitation) for the purpose of obtaining unauthorized access to the Network;
- Use any robot, spider, scraper, or other automated means to access the Network for any purpose or bypass any robot exclusion headers or other measures SFN may use to prevent or restrict access to the Network;
- Post any content that you do not own, unless you have all necessary rights to post such content and to grant with respect to such content all of the rights and licenses that are required to be granted under these Terms;
- Use any content that is made available on the Network in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party; or
- Violate any applicable laws or regulations or any applicable policies or codes of conduct of SFN or any Member Gym.
8. USER SUBMISSIONS.
a) SFN may provide certain features that allow users to submit, post, or share content, including text, graphic and pictorial works, on, to or through the Network (“User Submissions”). User Submissions are displayed for informational purposes only and are not controlled by SFN. SFN cannot guarantee any anonymity or confidentiality with respect to any User Submissions.
b) SFN makes no representations that it will publish or make available on the Network any User Submissions, and reserves the right (but has no obligation) to refuse to allow any User Submission on the Network, or to edit or remove any User Submission at any time, without any prior notification. Without limiting the generality of the preceding sentence, SFN may remove User Submissions in accordance with its Digital Millennium Copyright Act Policy.
c) By submitting, posting or sharing any User Submission, you hereby grant to SFN and its affiliates, sublicensees, partners, designees, and assignees (collectively, the “SFN Licensees”) a worldwide, non-exclusive, fully paid-up, royalty-free, perpetual, irrevocable, sublicensable (through multiple tiers) and transferable license, under all of your right, title and interest in and to such User Submission, to use, reproduce (including by making mechanical reproductions), distribute, modify, adapt, translate, prepare derivative works of, publicly display, publish, publicly perform, and otherwise exploit such User Submission, and any derivatives thereof, for any purpose, including marketing, promoting, and redistributing the Network, in any media format and through any media channel now known or hereafter discovered or developed.
d) You are solely responsible for your User Submissions and the consequences of submitting, posting or sharing them. In connection with submitting, posting or sharing any User Submission, you represent and warrant that: (i) you own such User Submission or otherwise have all necessary licenses, rights, consents, and permissions to use all patent, trademark, copyright, or other proprietary rights in and to such User Submission in the manner contemplated by these Terms and to grant the rights and licenses with respect to such User Submission as required hereunder, and (ii) neither your submitting, posting or sharing such User Submission, nor SFN’s or any other SFN Licensee’s use of such User Submission in accordance with these Terms and the rights and licenses with respect thereto granted hereunder, does or will (w) infringe, violate, or misappropriate any third-party rights, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right of any third party; (x) cause injury to any third party; (y) violate these Terms or any applicable law or regulation; or (z) require obtaining a license from or paying fees or royalties to any third party, including any royalties to any agency, collection society, or other entity that administers such rights on behalf of others. SFN takes no responsibility and assumes no liability for your User Submissions.
e) When using the Network, you may be exposed to User Submissions of other users. SFN does not endorse and is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to any such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES THAT YOU MAY HAVE AGAINST SFN WITH RESPECT TO ANY USER SUBMISSION OF ANY OTHER USER.
f) If you provide SFN with any comments, bug reports, feedback, or modifications proposed or suggested to the Network (“Feedback”), SFN shall have the right to use such Feedback at its discretion, including incorporation of such suggested changes into the Network. You hereby grant SFN a perpetual, irrevocable, nonexclusive license under all rights necessary to incorporate and use your Feedback for any purpose.
9. OWNERSHIP; PROPRIETARY RIGHTS.
SFN’s website and mobile applications are owned and operated by SFN. The visual interfaces, graphics, design, compilation, information, computer code, products, software (including any downloadable software), services, and all other elements of the Network provided by SFN (“Materials”) are protected by the copyright, trade dress, patent, and trademark laws of Canada, the Unites States, the United Kingdom and other countries, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any content uploaded by users, all Materials contained on the Network are the copyrighted property of SFN or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to SFN or its affiliates and/or third-party licensors. Except as expressly authorized by SFN, you shall not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated into or accompanying any Materials.
10. THIRD-PARTY SITES, PRODUCTS AND SERVICES.
The Network may include links or access to third party web sites or services (“Linked Services”). SFN does not control, maintain or endorse any Linked Services or any information, material, products, or services contained on or accessible through any Linked Services. SFN is in no way responsible for, and makes no express or implied warranties with regard to, any information, material, products, or services contained on or accessible through any Linked Services. ACCESS AND USE OF LINKED SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON LINKED SERVICES OR AVAILABLE THROUGH LINKED SERVICES, IS SOLELY AT YOUR OWN RISK.
Links to Linked Services, including advertisements and promotions, may appear on the Network in any manner on, near or in conjunction with any of your User Submissions.
Your interactions or business dealings with, or participation in any promotions of, any third parties arising out your use of the Network are solely between you and such third party and shall be governed by the terms of any agreement between you and such third party, not these Terms. YOU AGREE THAT SFN SHALL NOT BE RESPONSIBLE OR LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH INTERACTIONS OR DEALINGS OR AS THE RESULT OF THE PRESENCE OF ANY ADVERTISERS ON THE NETWORK.
11. ELECTRONIC COMMUNICATIONS.
You hereby consent to receiving electronic communications from SFN relating to your membership, including payment authorizations, change in password or payment method notices, confirmation e-mails and other transactional information. These communications may be made by email, to the email address provided by you in the registration process, or by posting to the Network. You agree that any notices, agreements, disclosures or other communications that SFN sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. You also consent to receiving certain other communications from us, such as newsletters about SFN products and services, special offers, promotional announcements and customer surveys via email or other methods. If you no longer want to receive certain non-transactional communications, you may update your communication preferences accordingly.
12. DISCLAIMERS; NO WARRANTIES.
CLASSES, ACTIVITIES, AND OTHER NON-SFN PRODUCTS AND SERVICES OFFERED VIA THE NETWORK ARE OFFERED AND PROVIDED BY THIRD PARTIES, NOT SFN. YOUR ACCESS TO AND USE OF THE NETWORK, AND YOUR ATTENDANCE AT OR PARTICIPATION IN ANY CLASSES OR ACTIVITIES, AND YOUR USE OF ANY OTHER NON-SFN PRODUCTS OR SERVICES, OFFERED VIA THE NETWORK, ARE ALL AT YOUR SOLE RISK AND RESPONSIBILITY. IN NO EVENT SHALL SFN BE LIABLE FOR ANY ACT, ERROR OR OMISSION OF ANY MEMBER GYM OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY ACT, ERROR OR OMISSION THAT ARISES DURING OR OUT OF OR IS ANY WAY CONNECTED WITH YOUR ATTENDANCE AT OR PARTICIPATION IN ANY CLASS OR ACTIVITY, OR YOUR USE OF ANY OTHER NON-SFN PRODUCT OR SERVICE, OFFERED VIA THE NETWORK, OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY PROVIDER IN CONNECTION WITH YOUR USE OF THE NETWORK. SFN IS NOT AN AGENT OF ANY THIRD PARTY PROVIDER.
THE NETWORK AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH OR THROUGH THE NETWORK ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SFN AND ITS AFFILIATES, SUPPLIERS AND PARTNERS, AND ITS AND THEIR OWNERS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE “SFN PARTIES”), HEREBY DISCLAIM AND EXCLUDE ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
WITHOUT LIMITING THE FOREGOING, THE SFN PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS (I) THAT THE NETWORK OR ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH OR THROUGH THE NETWORK WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE NETWORK AND ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH OR THROUGH THE NETWORK OR THE SERVER THAT MAKES THEM AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (II) REGARDING THE USE OF THE NETWORK OR ANY DOWNLOADABLE SOFTWARE, CONTENT, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONNECTION WITH OR THROUGH THE NETWORK IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE; (III) THAT ANY CLASSES, ACTIVITIES, OR NON-SFN PRODUCTS OR SERVICES OFFERED THROUGH THE NETWORK WILL CONFORM TO ANY REPRESENTATIONS OF THE PROVIDER THEREOF OR BE SAFE, APPROPRIATE OR USEFUL FOR ANY PURPOSE; OR (IV) THAT ANY INFORMATION PROVIDED ON THE NETWORK WILL BE COMPLETE, ACCURATE, APPROPRIATE OR USEFUL FOR ANY PURPOSE. ANY MATERIAL OR DATA THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE NETWORK IS AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
13. LIMITATION OF LIABILITY; WAIVER AND RELEASE.
SFN is not a gym or fitness studio or other similar service provider, and all Classes are operated and delivered by the applicable Member Gym and not by SFN. SFN is not responsible for the quality, safety or usefulness of any Class. There are certain inherent risks and dangers in exercising, and the Classes offered through the Network involve a range of activity and intensity levels. You acknowledge and agree, on behalf of yourself, your heirs, personal representatives and/or assigns, that you are aware of these risks, which may include, without limitation, property damage, illness and bodily injury or death. Some of these risks cannot be eliminated and you specifically assume the risk of injury or harm. It is your responsibility to consult with your primary care physician or other health care provider prior to participating and to determine if and how participating in any Class is appropriate. Any health and fitness information offered by the Network is provided for educational and entertainment purposes only, and the use of any of the information provided on the Network is solely at your own risk.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SFN PARTIES SHALL NOT BE LIABLE TO YOU FOR, AND YOU HEREBY RELEASE THE SFN PARTIES FROM ANY RESPONSIBILITY OR CLAIMS FOR, ANY LOSS, DAMAGE OR INJURY OF ANY KIND, INCLUDING WITH RESPECT TO BODILY INJURY, PHYSICAL HARM, ILLNESS, DEATH OR PROPERTY DAMAGE, AND INCLUDING ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES, THAT IN ANY WAY ARISES FROM, OUT OF OR IN CONNECTION WITH (A) THE NETWORK OR YOUR USE OF THE NETWORK; (B) ANY INFORMATION, CLASSES, ACTIVITIES, PRODUCTS OR SERVICES OFFERED OR PROVIDED ON OR THROUGH THE NETWORK OR YOUR ATTENDANCE AT, PARTICIPATION IN OR USE OF ANY SUCH INFORMATION, CLASSES, ACTIVITIES, PRODUCTS OR SERVICES; (C) ANY USER SUBMISSIONS; (D) ANY ACTS OR OMISSIONS OF ANY MEMBER GYM OR ANY OTHER THIRD PARTY; (E) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE SFN PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY THIRD PARTY’S USE OF THE NETWORK; (F) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS WITH RESPECT TO YOUR OR ANY THIRD PARTY’S USE OF THE NETWORK; (G) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE NETWORK, OR ANY LOSS OF CONTENT OR OTHER DATA; OR (H) ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING IN EACH CASE ((A) THROUGH (H)), WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE SFN PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICES).
Section 1542 of the California Civil Code provides that:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE OTHER PARTY.”
YOU HEREBY EXPRESSLY WAIVE ALL RIGHTS UNDER CALIFORNIA CIVIL CODE SECTION 1542 (or any statute of like effect in the jurisdiction in which you are located). This waiver extends to and includes any and all claims, liabilities, injuries, damages, and causes of action that you do not presently anticipate, know, or suspect to exist, but that may develop, accrue, or be discovered in the future.
TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OF LIABILITY SET FORTH ABOVE, YOU AGREE THAT THE TOTAL LIABILITY OF THE SFN PARTIES TO YOU FOR ALL LOSSES, DAMAGES OR INJURIES DESCRIBED IN THE SECOND PARAGRAPH OF THIS SECTION SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00) OR, IF GREATER, THE AGGREGATE AMOUNT PAID BY YOU TO SFN IN CONNECTION WITH THE TRANSACTIONS GIVING RISE TO SUCH LOSSES, DAMAGES OR INJURIES.
You agree to indemnify and hold harmless the SFN Parties from and against any claims, losses, damages, liabilities, including attorneys’ fees, arising out of or in connection with any third party claim arising out of or in connection with (a) your access to or use of the Network; (b) your attendance at, participation in or use of any information, Classes, activities, products or services offered or provided on or through the Network; (c) your User Submissions; (d) your breach or alleged breach of these Terms; (e) your violation of any rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; (f) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including all regulatory, administrative and legislative authorities; or (g) any misrepresentation made by or inaccurate information provided by you.
15. MEMBER GYM WAIVERS AND TERMS.
You may be required to agree to the liability waivers of applicable Member Gyms, and your participation in Classes may be subject to additional policies, rules or conditions, including fees, of applicable Member Gyms. You may not be permitted to reserve or attend classes unless you agree to such liability waivers and/or complies with such additional policies, rules or conditions. Any issues regarding a Member Gym’s liability waivers or additional policies, rules or conditions must be addressed directly to the Member Gym.
17. ARBITRATION AGREEMENT
PLEASE READ THE FOLLOWING CAREFULLY:
a) This arbitration agreement is intended to facilitate the prompt and efficient resolution of any disputes that may arise between you and SFN. Arbitration is a form of private dispute resolution in which parties agree to submit their disputes and potential disputes to a neutral third person (called an arbitrator) for a binding decision, instead of having such dispute(s) decided in a lawsuit, in court, by a judge or jury trial. You have the right to opt-out of this arbitration agreement (as explained below), in which case you would retain your right to litigate your disputes in a court, either before a judge or jury.
Please read this arbitration agreement carefully. It provides that all disputes between you and SFN shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this arbitration agreement constitutes a waiver of your right to litigate claims in court and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this arbitration agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this arbitration agreement, “SFN” means SFN and its parents, subsidiaries, and affiliated companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and SFN regarding any aspect of your relationship with SFN, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, gross negligence or reckless behavior), or any other legal or equitable theory, and includes any disputes related to the validity, enforceability or scope of this arbitration agreement (with the exception of the enforceability of the class action waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced.
YOU AND SFN EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION AGREEMENT.
b) For all Disputes, whether pursued in court or arbitration, you must first give SFN an opportunity to resolve the Dispute. You must commence this process by mailing written notification to SFN, Legal Department, 1239 Reamwood Avenue, CA 94089. That written notification must include (1) your name, (2) your address, (3) a written description of the Dispute, and (4) a description of the specific relief you seek. If SFN does not resolve the Dispute to your satisfaction within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
c) Notwithstanding the above, you may choose to pursue a Dispute in court and not by arbitration if YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU COMPLETE THE REGISTRATION PROCESS WITH SFN (the “Opt-Out Deadline”). You may opt out of this arbitration agreement by mailing written notification to SFN, Legal Department, 1239 Reamwood Avenue, CA 94089. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with SFN through arbitration. Your decision to opt-out of this arbitration agreement will have no adverse effect on your relationship with SFN. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
d) If this arbitration agreement applies and the Dispute is not resolved as provided above, then either you or SFN may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted in San Jose, California before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this arbitration agreement. For arbitration before the AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267. This arbitration agreement governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration. Because your contract with SFN concerns interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
e) The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator shall make any award in writing but need not provide a statement of reasons unless requested by a party. Such award by the arbitrator will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
f) Except as otherwise provided in this arbitration agreement, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action) unless both you and SFN specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of this arbitration agreement as specified above, this class action waiver will not apply to you. No SFN user can be a class representative, class member, or otherwise participate in a class, representative, consolidated or private attorney general proceeding without having complied with the opt-out requirements above.
g) You understand and agree that, by entering into this arbitration agreement, you and SFN are each agreeing to arbitration instead of the right to a trial before a judge or jury in a public court. In the absence of this arbitration agreement, you and SFN might otherwise have had a right or opportunity to bring Disputes in a court, before a judge or jury, and/or to participate or be represented in a case filed in court by others (including class actions). Except as otherwise provided below, you give up those rights. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited in arbitration. The right to appellate review of an arbitrator’s decision is much more limited than in court, and in general an arbitrator’s decision may not be appealed for errors of fact or law.
h) If any clause within this arbitration agreement (other than the class action waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this arbitration agreement, and the remainder of this arbitration agreement will be given full force and effect. If the class action waiver clause is found to be illegal or unenforceable, then this entire arbitration agreement will be unenforceable and the Dispute will be decided by a court.
i) This arbitration agreement shall survive the termination of your SFN membership and your use of the Network.
a) These Terms shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. Subject to the arbitration agreement set forth herein, any claim or dispute against SFN must be resolved by a court located in San Jose, California, and you hereby agree to submit to the personal jurisdiction of such courts for the purpose of litigating all such claims or disputes.
b) SFN may assign any or all of its rights or obligations hereunder without your consent or any notice to you. You may not assign any of your rights or obligations hereunder, whether voluntarily or by operation of law, without the prior written consent of SFN. Any purported assignment without such prior written consent shall be null and void. Subject to the foregoing, these Terms will inure to the benefit of the parties’ successors, assigns and licensees.
c) If any provision of these Terms is held to be unenforceable under applicable law in any context, such provision shall be deemed limited or modified to the minimum extent necessary to render it enforceable under applicable law in such context, in a manner that results in an interpretation most closely approximating the intention expressed herein, and the remainder of these Terms shall remain in full force and effect.
d) The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
e) These Terms (including any additional terms or policies incorporated by reference herein) are the entire agreement between you and SFN relating to the subject matter hereof and supersede any previous written or oral agreements between you and SFN with respect to such subject matter.
f) ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR THE NETWORK MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
g) No waiver of any of these Terms by SFN is binding unless authorized in writing by an executive officer of SFN. In the event that SFN waives a breach of any provision of these Terms, such waiver will not be construed as a continuing waiver of other breaches of the same nature or other provisions of these Terms, and will in no manner affect the right of SFN to enforce the same at a later time.