Last Modified: October 13, 2017
1. Your Acceptance
Throughout this Agreement, the words “Activate Fitness,” “us,” “we,” and “our,” refer to our company, as is appropriate in the context of the use of the words.
2. User Information and Accounts
3. Children’s Privacy
Users must be 13 years or older to sign up for the Activate Fitness Platform and to create an account. Users of the Platform may allow other persons to use their accounts or the Platform where such account is linked to multiple instances of the application. The Platform does not intend to and does not collect any personally identifiable information from any persons under the age of 13. All users who have registered are responsible for monitoring all usage of the Platform by a person who is under the age of 13. Where you believe that a person under the age of 13 has submitted personally identifiable information to us via your user account, you must notify us immediately so that we may take the proper steps to remove such personally identifiable information from our Platform.
4. Consult a Medical Professional
Activate Fitness may contain fitness and exercise content on the Platform. All content found on Activate Fitness is intended for informational and educational purposes only and does not constitute medical advice. Any Activate Fitness content is not intended as a substitute for the advice provided by your physician or other healthcare professional. Please ensure that you are healthy enough for physical activity before using the Platform. You should always speak with your physician or other healthcare professional before adopting any exercise regimen or fitness routine. If you have or suspect that you have a medical problem, promptly contact your physician or health care provider.
5. Access and License Grant to You
After registering and properly paying for our Platform, where required, we grant you a personal, non-exclusive, revocable, limited license to download one copy of our Platform onto any computer or device. If you are accessing our Platform via the internet we grant you access to the Platform with the same restrictions as our license grant. You may share this license and access with other persons but you are solely responsible for their actions. As a user, you do not receive any ownership interest in any portion of the Platform; you merely receive the aforementioned revocable license or access listed above. All rights not explicitly granted are reserved for Activate Fitness. If you breach any of our usage guidelines, as stated below, we may revoke your license or your access to use our Platform at our discretion. Additionally, we may revoke your license or restrict your access to our Platform if we believe that your actions may harm us, our business interests, or any of our users. Failure by us to revoke your license or restrict access does not act as a waiver of your conduct
6. Use of the Platform
When using our Platform, you are responsible for your and for any use of Activate Fitness made using your account. You agree to the following:
- You way not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
- You may not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
- You may not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
- You may not use automated bots or other software to send more messages through our Platform than humanly possible;
- You may not share your license or access with any other parties;
- You may not decompile, reverse engineer, disassemble, modify, rent, sell, lease, loan, distribute, or create derivative works or improvements to the Platform or any portion of it;
- You may not access our Platform in an attempt to build a similar or other competitive product;
- You may not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- You may not impersonate any person or entity or misrepresent your affiliation with a person or entity;
- You may not violate or infringe other people's intellectual property, privacy, or other contractual rights while using our Platform;
- You may not violate any requirements, procedures, policies or regulations of networks connected to Activate Fitness;
- You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform;
- You may not interfere with or disrupt the Platform;
- You may not violate any law or regulation and you solely are responsible for such violations;
- You agree that you will not hold Activate Fitness responsible for your use of our Platform; and
- You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a thirty party’s website, such as by requesting its removal from a search engine.
If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Activate Fitness reserves the right to suspend or terminate any account at any time without notice or explanation.
7. User Content
Your ability to submit or transmit any information through the Platform, including but not limited to data, information, images, references, or any other information will be referred to as “User Content” throughout this Agreement. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. We provide industry standard security for our Platform but we cannot guarantee the absolute safety and security of any such User Content. Any User Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion.
When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have permission to use any User Content submitted. Furthermore, you represent and warrant that all User Content is legal and the User Content does not interfere with any third party rights or obligations.
When you submit any User Content to us, you grant Activate Fitness, its partners, affiliates, users, representatives and assigns a non-exclusive, limited, fully-paid, royalty-free, revocable, world-wide, universal, transferable, assignable license to display, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works, or use and reuse all or part of your User Content for the purposes of providing you any services associated with the Platform. Additionally, you grant to Activate Fitness a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Platform any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation of our Platform.
8. Monitoring User Content
Activate Fitness shall have the right, but not the obligation, to monitor all User Content on the Platform at all times, to determine compliance with this Agreement and any guidelines established by us. Without limiting the foregoing, Activate Fitness shall have the right, but not the obligation, to remove any User Content that Activate Fitness at its sole discretion. For example, we may remove User Content if we believe that any User Content may harm us or our business interests. We have no obligation to retain or provide you with copies of any User Content after your termination of this Agreement.
9. Platform Availability and Integration
Although we try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. The Platform may offer integrations with other third party products. Any services offered by the third party products are not guaranteed by us and we make no guarantees that any integrations with any third party products will be fully functional or operational at all times. As such third party products may have bugs or other imperfections, we cannot guarantee that the Platform will work to the functionality desired by you or give you any desired results when using the Platform independently or when paired with a third party product.
10. Modification of Platform
We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.
11. Platform Security
Activate Fitness implements administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your information and all User Content. Those safeguards used or based on standard practices for mobile applications. Aside from such industry standard safeguards, Activate Fitness can make no guarantees regarding any Platform security or any User Content secured, and you agree to release us from any liability related to the storage of any User Content or any Platform security.
You agree to pay for all costs, fees, and taxes listed when purchasing any access to the Platform and any related software. Where applicable, you must agree to our third party payment processors terms and conditions for processing payments. All information that you provide in connection with a purchase or transaction must be accurate, complete, and current; all such information is collected, stored, secured, and processed by our third party payment processor.
13. Recurring Payments
For your convenience some services offered by Activate Fitness may be made on a recurring subscription basis (“Paid Subscription”). Where you decide to purchase any Paid Subscriptions, your payment information shall be logged and you will be charged monthly for any Paid Subscriptions. YOU AUTHORIZE US TO BILL YOU ON A RECURRING BASIS AND AGREE THAT AT THE EXPIRATION OF YOUR INITIAL PAID SUBSCRIPTION, YOUR PAID SUBSCRIPTION SHALL AUTOMATICALLY RENEW FOR ADDITIONAL MONTHLY SUBSCRIPTION PERIODS (OR FOR THE SAME PERIOD AS YOUR INITIAL PAID SUBSCRIPTION) UNTIL WE ARE NOTIFIED OTHERWISE. YOU AGREE THAT NO ADDITIONAL CONSENT IS REQUIRED BY YOU TO CHARGE YOUR PREFERRED PAYMENT METHOD AUTOMATICALLY AND ON A RENEWABLE BASIS FOR THE PAID SUBSCRIPTION PLAN SELECTED BY YOU. If you wish to cancel your Paid Subscription please cancel through your Platform dashboard or by contacting us. Upon cancellation of a Paid Subscription, portions of the Platform may become immediately inaccessible. Where your Paid Subscription has been cancelled or expired, we have no liability to you for any deleted, inaccessible, modified, or removed User Content.
14. Pricing and Price Increases
The pricing for any services or Paid Subscriptions is listed on Activate Fitness Platform. Activate Fitness may increase the price of any Paid Subscriptions or services, at our discretion and we reserve the right to do so at any time. In the event of a price increase, Activate Fitness shall notify you and you will have the chance to accept or reject any price increase. Please notify us if you intend to reject a price increase. Where you have rejected a price increase, you may be unable to access portions of the Platform. You agree that Activate Fitness has no obligation to offer any services or Paid Subscriptions for the price originally offered to you at sign up.
As we offer access to the Platform, we cannot offer refunds for any Paid Subscriptions. Please be aware that all purchases are final. If you believe that you have been charged in error please contact us through the Platform dashboard immediately.
16. Intellectual Property
The name “Activate Fitness”, the Activate Fitness mobile application along with the design of the Activate Fitness Platform and any text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein ("Marks"), are owned by or licensed to Activate Fitness, subject to copyright and other intellectual property rights under US and foreign laws and international conventions. Activate Fitness reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.
18. Idea Submission
Activate Fitness or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Activate Fitness. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Activate Fitness’s products might seem similar to ideas you submitted to Activate Fitness. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of Activate Fitness, without any compensation to you; (2) Activate Fitness may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Activate Fitness to review the Submission; and (4) there is no obligation to keep any Submissions confidential.
THE PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER ACTIVATE FITNESS, NOR ANY OF OUR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (1) THE PLATFORM; (2) ANY INFORMATION PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO ACTIVATE FITNESS, OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
ACTIVATE FITNESS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. ACTIVATE FITNESS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. ACTIVATE FITNESS DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND ACTIVATE FITNESS SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
20. Limitation of Liability
IN NO EVENT SHALL Activate Fitness, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE ACTIVATE FITNESS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (1) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (2) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, (3) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (4) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (5) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, OR (6) ANY ACTION TAKEN IN CONNECTION WITH ANY THIRD PARTY COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. SOME STATES, INCLUDING NEW JERSEY, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (1) death or personal injury caused by Activate Fitness’s negligence or that of any of its officers, employees or agents; (2) fraudulent misrepresentation; or (3) any liability which it is not lawful to exclude either now or IN THE FUTURE. SPECIFICALLY, FOR NEW JERSEY RESIDENTS OUR LIABILITY IS THE LOWEST PERMITTED UNDER NEW JERSEY LAW. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED ONE HUNDRED ($100) US DOLLARS.
You agree to defend, indemnify and hold harmless Activate Fitness, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:
- your use of and access to the Activate Fitness Platform;
- your violation of any term of this Agreement; or
- your violation of any third party right, including without limitation any copyright, property, or contractual right.
This defense and indemnification obligation will survive this Agreement and your use of the Activate Fitness Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.
We take copyright infringement very seriously. If you believe that any content owned by you has been infringed upon please send us a message which contains:
- Your name.
- The name of the party whose copyright has been infringed, if different from your name.
- The name and description of the work that is being infringed.
- The location on our Platform of the infringing copy.
- A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
- A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.
You must sign this notification and send it to us via the Platform dashboard.
23. Choice of Law
This Agreement shall be governed by the laws in force in the state of Indiana. The offer and acceptance of this contract is deemed to have occurred in the state of Indiana.
Any dispute relating in any way to your use of the Platform or your relationship with us shall be submitted to confidential arbitration in Indianapolis, Indiana. Arbitration under this Agreement shall be conducted pursuant to the applicable Consumer Rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where allowed by the Rules, Activate Fitness may make any and all appearances telephonically or electronically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned (waiver does not apply to New Jersey residents). Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), or make a claim for nonpayment, in a court of appropriate jurisdiction, and issues of intellectual property ownership or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Marion County, IN.
25. Class Action
You and Activate Fitness agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. The foregoing class action waiver does not apply to residents of New Jersey.
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.
If two or more provisions of this Agreement or any other agreement you may have with Activate Fitness are deemed to conflict with each other’s operation, Activate Fitness shall have the sole right to elect which provision remains in force.
We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.
28. Assignment and Survival
You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. All portions of this Agreement that would reasonably be believed to survive termination shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Licensing, Indemnification, and Arbitration sections.
You may cancel your Paid Subscription at any time via your Activate Fitness dashboard or contacting us via the Platform dashboard. Any refunds are subject to the refund terms contained in this Agreement. Please be aware that upon termination of your account, access to portions of our Platform may be become immediately disabled. We may terminate this Agreement with you if we determine that: (1) you have violated any applicable laws while using our Platform; (2) if you have violated this Agreement or any of our Platform policies; or (3) if we believe that any of your actions may legally harm Activate Fitness or our business interests, at our sole decision or discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.
30. Entire Agreement
We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform.
32. Electronic Communications
The communications between you and Activate Fitness use electronic means, whether you visit the Platform or send Activate Fitness e-mails, or whether Activate Fitness posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from Activate Fitness in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Activate Fitness provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
33. Export Controls
The Platform and the underlying information and technology may not be downloaded, accessed, or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
This Agreement is entered solely into between you and Activate Fitness, owner and operator of the Platform. Although our Platform may be available for download in the Google Play Store (“Google”) or the iTunes Store (“Apple”), neither Google nor Apple are a party to this Agreement and shall have no obligations with respect to the Platform. Activate Fitness is solely responsible for the Platform and the content thereof as set forth hereunder. However, Google and Apple are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple or Google shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple and Google, for purposes of which, you are “the end-user.” In the event of a conflict in the Terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
35. Third Party Links
The Platform may permit you to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Platform. When you access third party resources on the Internet, you do so at your own risk. These other resources are not under our control, and you acknowledge that we are not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply our endorsement or any association between us and their operators. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource.
36. Platform Issues and Support
Where you have any questions, issues, or if you are having trouble accessing or using the Platform, please contact us via the Platform.
37. Data Rates
You will be able to access the Platform through your mobile device or cellphone. Please be aware that data and messaging rates may apply depending on your carrier and phone service. Please be sure to check your data plan to understand any relevant costs incurred by your use. We cannot be responsible for any fees charged by your data or cellphone carrier.
38. California Users
Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Activate Fitness must be sent to our agent for notice through the Platform dashboard.
Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.