Acceptance of Terms
This is a legal agreement ("Agreement") between you, the user, together with any organization, company or other business entity you are representing, if any (collectively, the "User") and Fitnessuniverse.com ("FU.com"). BY CHECKING THE BOX ON THE SIGN UP PAGE, OR BY REGISTERING WITH THE SITE, MEMBER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If User does not agree to the terms of this Agreement, do not check the box and do not use or access the Service.
The Service is offered to User conditioned upon User's acceptance without modification of this Agreement. User acknowledges that, from time to time, it may be necessary for FU.com to update or revise certain provisions of the Agreement. By joining FU.com and accepting this Agreement, User agrees that FU.com may change the terms of the Agreement in its sole discretion without specific notice to User. If User does not agree to the changes proposed by FU.com, or to any terms in this Agreement, User's sole and exclusive remedy is to cancel User's FU.com account ("User's Account"). Notwithstanding the foregoing, FU.com reserves the right to cancel, suspend or refuse access to the Service to anyone in its sole discretion. Unless explicitly stated otherwise, any new features or products that change, augment or enhance the current Service shall be subject to this Agreement.
General Use of the Service
User shall not use the Service, in whole or in part, for any purpose that is unlawful or prohibited by this Agreement. User agrees that User will not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, frame in another web page, use on any other Web site, transfer, or sell any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Service other than for use in creating a Web site ("User Web Site") in accordance with this Agreement. This means, among other activities, that User agrees not to engage in the practices of "screen scraping", "database scraping", or any other activity with the purpose of obtaining lists of users or other information. User agrees that User will not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. User may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. Except with the written permission of FU.com, User agrees that User will not access or attempt to access password protected, secure or non-public areas of the Service. If User attempts to access prohibited areas of the Service, User may be subject to prosecution.
In order for User to participate in the Service, FU.com will require User to provide specific information about User and/or User's organization or business (if applicable). If User chooses to participate and build a User Web Site, User agrees to provide true, accurate and complete information and to refrain from impersonating or falsely representing User's affiliation with any person or entity. User shall be responsible for maintaining the confidentiality of User's Account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. User shall be responsible for all actions by such users, including without limitation former employees and former partners, and shall indemnify FU.com for such actions.
User Account Limitations
User hereby acknowledges that FU.com may, from time to time, establish general practices and limits concerning the use of the Service, including without limitation, (a) maximum limits on storage space, (b) the maximum number of Web sites per User Account, and (c) maximum limits on the number of pages within each User Web Site. Any of the foregoing limits will be consistent with the Service for which User registered. User agrees that FU.com has no responsibility or liability for the deletion or failure to store any content maintained or transmitted by the Service. User further acknowledges and agrees that FU.com reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Content Submitted to FU.com
The FU.com Web Site includes a number of venues such as User Web sites and Web pages, Discussion Boards and/or other message or communication facilities designed to enable Users to disseminate and exchange thoughts and opinions to and with other users or the public. Although FU.com firmly believes in the value of free and open dissemination and exchanges, it is under no obligation, but does reserve the right, to monitor, pre-screen, or otherwise censor User's thoughts and opinions. Therefore, FU.com cannot be responsible for the appropriateness, accuracy, sufficiency, correctness, veracity, completeness, or timeliness of such thoughts and opinions. User acknowledges that User should always use caution when posting any personally identifying information about user or or employees on the FU.com Web Site, the User Web Site, or any other user Web sites.
User's right to use the Service is personal to User and User's organization, company and its employees (if applicable). User, and not FU.com, is entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages or other materials ("User Content") posted via the Service. User, and not FU.com, is also responsible for compliance with all laws, regulations and ordinances connected with all aspects of User's use of the Service. User shall not use the Service for any illegal purpose in violation of any local, state, federal or international law. User must provide all required and appropriate warnings, information and disclosure, comply with all applicable laws and regulations, and take all other required and appropriate actions (collectively, "Information and Actions") in connection with User's use of the Service. If the Service does not provide adequate facility or features for User to provide such Information and Actions, then User shall not use the Service.
FU.com does not control the User Content posted via the Service and as such, does not guarantee the accuracy, integrity or quality of such content. FU.com reserves the right, but is not obligated to review the User Content posted via the Service and to refuse or remove any such materials in its sole discretion, without notice at any time. FU.com also reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or remove any information or materials, in whole or in part, from the User Content in FU.com's sole discretion. With respect to the content on the User Web Site, User agrees not to:
a) post, upload or otherwise transmit any content which is misleading to others or impersonate any person or entity or falsely state or otherwise misrepresent User's affiliation with a person or entity to others, including, but not limited to, consumers;
b) post, upload or otherwise transmit any content that is inappropriate, harmful to minors, threatening, abusive, harassing, tortious, defamatory, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
c) post, upload or otherwise transmit any content that User does not have a right to post and transmit under any law or under contractual or fiduciary relationships (such as information learned or disclosed as part of employment relationships or under nondisclosure agreements);
d) post, upload or otherwise transmit any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary rights of any party;
e) post, upload or otherwise transmit any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment and/or attempt to access the accounts of others, or attempt to penetrate security measures of FU.com, its vendors or suppliers or other entities' systems ("hacking"), whether or not the intrusion results in corruption or loss of data;
f) post, upload or otherwise transmit any materials that impose an unreasonable or disproportionately large load on FU.com's infrastructure that exceed the limits provided by the Service for which User registered;
g) post, upload or transmit any unsolicited or unauthorized advertising, promotional materials, "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
h) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
i) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
j) forge any headers or other manipulation of identifiers in order to disguise the origin of any content transmitted through the Service;
k) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals;
l) sell, distribute, disseminate or link to any sites for marketing, sales, distribution of: firearms, explosives, ammunition, liquor, tobacco products and any other products or services that (i) User cannot legally sell, (ii) are misrepresented, and/or (iii) if sold via the User Web Site could cause FU.com to violate any law, statute or regulation.
m) post or disclose any personal or private information or images about children or any third party without their consent (or a parent's consent in the case of a minor). FU.com may terminate User's Account if FU.com determines that such content is inappropriate for the community at large but does not otherwise violate the terms of this Agreement.
As part of the Service, FU.com provides its Users with a venue and an opportunity to participate in discussion boards ("Discussion Boards"). User shall abide by all terms and conditions of FU.com's Discussion Board Policy, which is hereby incorporated by reference, in utilizing the Discussion Boards.
Third Party Content
For User's convenience, the Service, which includes the FU.com Web Site, contains products, services, content and information from third party providers (which includes advertisers and affiliates) and/or links to their Web sites ("Third Party Content"). Such Third Party Content is not under the control of FU.com and FU.com is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. FU.com is under no obligation, but does reserve the right to pre-screen Third Part Content available on the Service and does not assume any responsibility or liability for the content provided by others. FU.com is providing such Third Party Content to User only as a convenience, and the inclusion of such content does not imply endorsement by FU.com of such content or the affiliate or advertiser. User may be subject to additional and/or different terms, conditions, and privacy policies when using third party products, services, content, software, or sites. FU.com does reserve the right to remove content that, in FU.com's judgment, does not meet its standards, but FU.com is not responsible for any failure or delay in removing such material.
FU.com is not and will not be responsible for (i) the terms and conditions of any transaction between User and any third party, (ii) any insufficiency of or problems with any such third party's background, insurance, credit or licensing, or (iii) the quality of services performed by any such third party or any other legal liability arising out of or related to the performance of such services. In the event that User has a dispute with any such third party, User releases FU.com (and its affiliates, suppliers, agents and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY UNDERSTANDS AND AGREES THAT:
(A) MEMBER'S USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. FU.COM AND ITS SUPPLIERS PROVIDE THE SERVICE, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE, THE FU.com WEB SITE AND THE MEMBER WEB SITE "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
(B) FU.com AND ITS SUPPLIERS MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY MEMBER THROUGH THE SERVICE WILL MEET MEMBER'S EXPECTATIONS.
(C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE, THE FU.com WEB SITE OR MEMBER WEB SITES IS DONE AT MEMBER'S OWN DISCRETION AND RISK, AND MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
LIMITATION OF LIABILITY
IN NO EVENT SHALL FU.COM AND/OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF FU.COM OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICE, (B) THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, (C) FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE, OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO MEMBER. IN NO EVENT SHALL FU.COM'S AGGREGATE LIABILITY TO MEMBER AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT MEMBER ACTUALLY PAYS TO FU.com UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR $500.00, WHICHEVER IS LESS. Without limiting the foregoing, neither FU.com nor its suppliers is responsible for any of User's data residing on the Service or FU.com's suppliers' hardware. User is responsible for backing-up User's data and information that may reside on the Service or FU.com's suppliers' hardware, whether or not such information is produced through the use of the Service. It is User's responsibility to take the necessary steps to ensure that User's primary means of business is maintained (if applicable).
Proprietary Rights to User Content
FU.com does not claim ownership of the User Content that User provides to FU.com and/or places on the User Web Site. However, User grants FU.com a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, combine with information provided by third parties, and publicly display the User Content on and through the Service and in FU.com's promotional or advertising materials (only for the limited purpose of promoting the Service), and (ii) sublicense to third parties such User Content to the extent necessary for the creation and maintenance of, in part or in whole, such web sites. No compensation will be paid or due User with respect to FU.com's or its sublicensee's use of the materials as licensed above. By posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through any User web Site, User warrants and represents that User owns or otherwise controls the rights necessary to do so and to grant FU.com the license set forth above and, User will defend and indemnify FU.com and its suppliers from any third party claim related to a breach of any of the foregoing representations and warranties.
FU.com Proprietary Rights/Software Licenses
User acknowledges and hereby agrees that the Service and any software used in connection with the Service (the "Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. User further acknowledges and agrees that content contained in sponsor advertisements or information presented to User through the Service, advertisers and/or Diva Blogs is protected by applicable copyrights, trademarks, service marks, patents and other proprietary rights and laws.
FU.com provides User with a non-exclusive, non-transferable, limited license to use the Software, which User agrees to use in accordance with this Agreement. User may not sub-license or charge others to use or access the Software without first obtaining written permission from FU.com. The Software is owned by FU.com and/or its suppliers and is protected to the maximum extent permitted by copyright laws and international treaty provisions. Any reproduction, modification, creation of derivative works from or redistribution of the Software is expressly prohibited, and may result in severe civil and criminal penalties. The Software, its structure, sequence and organization and source code are considered trade secrets of FU.com and its suppliers and are protected by trade secret laws. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCING THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. MEMBER MAY NOT DECOMPILE OR DISASSEMBLE, REVERSE ENGINEER OR OTHERWISE ATTEMPT TO DISCOVER ANY SOURCE CODE CONTAINED IN ANY SOFTWARE PROVIDED HEREUNDER.
User agrees to indemnify and hold FU.com and its suppliers, affiliates, partners, subsidiaries and employees (collectively, the "Indemnified Parties") harmless from any and all claims and demands, losses, liability costs and expenses (including, but not limited to, reasonable attorneys' fees), incurred by an Indemnified Party arising out of or related to (i) User's breach of this Agreement; (ii) any information (including but not limited to User Data and User's publicly posted information) submitted, posted, or otherwise provided by User at the User web Site and/or to FU.com and/or its affiliates; (iii) any dispute or litigation between an Indemnified Party and a third party caused by User's actions; and (iv) User's negligence or violation or alleged violations of any rights of another. These obligations will survive any termination of User's relationship with FU.com or User's use of the Service. To the fullest extent permitted by law, the foregoing indemnity will apply regardless of any fault, negligence, or breach of warranty or contract of FU.com and/or its suppliers, affiliates, partners, subsidiaries and employees.
Copyright and Trademark Notices
All materials of the Service and the Software (as well as the organization and layout of the FU.com web Site) are owned and copyrighted or licensed by FU.com, its affiliates or its suppliers. All rights reserved. No reproduction, distribution, or transmission of the copyrighted materials of the Service, which includes the FU.com web Site and/or the Software, is permitted without the written permission of FU.com. Any rights not expressly granted herein are reserved. FU.com, the FU.com logo, are trademarks of FU.com (the "FU.com Marks"). User agrees not to display or use the FU.com Marks in any manner whatsoever without FU.com's prior permission.
Notification of Claims of Copyright Infringement
Any notifications of claimed copyright infringement should be sent to FU.com's Registered Agent, [email protected].
Modification of the Service
FU.com reserves the right, at its sole discretion, to, at any time, modify, or discontinue the Service, temporarily or permanently, (or any part thereof), including the imposition of limits on certain features and services or restriction of access to parts or all of the Service, with or without notice. User agrees that FU.com shall not be liable to User or to any third party for any modification, suspension or discontinuance of the Service. User further agrees that FU.com shall have the right to remove any Element from the User web Site, with or without notice to User, at any time at FU.com's sole discretion, if FU.com discontinues offering the Element for any reason. If User does not agree to any such modifications, User's sole and exclusive remedy is to cancel User's Account.
Termination/Cancellation of User Account
User further agrees that FU.com, in its sole discretion, may terminate User's web Site, User's Account or User's use of the Service for any reason, including, without limitation, (i) if User breaches this Agreement, (ii) if FU.com is unable to verify or authenticate any information that User provides to FU.com, (iii) if FU.com believes that User has violated or acted inconsistently with the spirit of this Agreement, or (iv) for lack of use if User has registered for a free Service. FU.com may also terminate User's web Site and/or User's Account if FU.com determines, in FU.com's sole discretion, to discontinue offering the Service. If FU.com terminates User's Account pursuant to (i), (ii) or (iii) above, User will forfeit all credits, pre-paid fees, and any other amounts accruing to User, if any, and FU.com shall not be required to refund, redeem, or pay amounts to User upon such termination.
Upon termination of User's Account for any reason, User shall remain liable for and FU.com reserves the right to (a) delete any User Content, listings, messages or other information in connection with User's account; (b) prohibit User's access to User's Account, including without limitation by deactivating User's password; and (c) refuse User future access to the Service. In no event shall FU.com be required to refund, redeem, or pay amounts to User upon termination of Service.
Statements, notices and other communications to User may be made by mail, email, postings within User's account or other reasonable means. FU.com may also provide notices of changes to the Agreement or other matters by displaying notices or links to notices generally on the FU.com web Site. User should refer to the User Support page of the FU.com web Site for information on how to contact and/or provide notice to FU.com.
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. FU.com's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. User shall not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise, without prior written approval of FU.com, and any such attempted assignment shall be void. FU.com shall have the right to freely assign this Agreement, and its rights and obligations hereunder, to any third party without requiring the consent or notice of User. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties hereto, their successors and permitted assigns. This Agreement sets forth the entire understanding and agreement between FU.com and User with respect to the subject matter hereof. The section and subsection titles in the Agreement are for convenience only and have no legal or contractual effect. Each party is an independent contractor and not an agent or representative of any other party. No party shall have any right or authority to create any obligation or make any representation or warranty in the name or on behalf of any other party. This Agreement shall not be interpreted or construed to create an association, joint venture or partnership between the parties or to impose any partnership obligation or liability upon any party. The parties acknowledge and agree that this Agreement may be entered into electronically, and without the necessity of written signatures.
The services hereunder are offered by FU.com, located at Fitness Universe, P.O. Box 6100, Rosemead, CA 91770.
If you happen to observe any violations of this Agreement regarding FU.com Diva Blogs or Message Board conduct, please report such violations to [email protected].
MEMBER ACKNOWLEDGES THAT MEMBER HAS READ THIS AGREEMENT AND ALL RELATED SITE SCREENS REFERENCED AND INCORPORATED IN THIS AGREEMENT AND THAT MEMBER AGREES TO ALL ITS TERMS AND CONDITIONS. MEMBER HAS INDEPENDENTLY EVALUATED ALL ASPECTS OF THIS AGREEMENT AND THE DESIRABILITY OF ENTERING INTO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT.
I have read, and will abide by the above Terms of Service.