Last Updated: May 1, 2017
IMPORTANT! PLEASE READ THESE TERMS & CONDITIONS CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATION TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
BY ACCESSING THIS SITE, YOU ARE INDICATING YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THESE TERMS & CONDITIONS. THESE TERMS & CONDITIONS ARE SUBJECT TO CHANGE BY 43FITNESS AT ANY TIME IN ITS SOLE DISCRETION. YOUR USE OF THIS SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES. PLEASE CONSULT THESE TERMS & CONDITIONS REGULARLY.
Congratulations on choosing to invest in yourself! We look forward to helping you accomplish your fitness goals safely and with your unique needs in mind.
This Site and Services are operated by, and by using the site you are contracting with 43fitness LLC (hereinafter “43fitness”, “we”, “us” or “our”) with respect to use of the Site, Services and any payments from or to you conducted through the Site or Services.
43fitness offers online and in-person coaching, health and wellness programs as well as in-gym personal training programs (collectively the “Services”). Online Services are accessible at www.43fitness.com and any other websites or applications for mobile devices through which 43fitness makes the online Services available (collectively, the “Site”). By using the Site and/or Services, you agree to comply with and be legally bound by the terms and conditions herein (the "Terms"), whether or not you become a client of 43fitness or user of the Services. These Terms govern your access to and use of the Site, Services Content (defined below), and constitute a binding legal agreement between you and 43fitness. If you do not agree to these Terms, you have are not authorized and have no right to obtain information from or otherwise use or continue using the Site and/or Services. Failure to use the Site and/or Services in accordance with these Terms may subject you to civil and criminal penalties.
The Site and Services are intended solely for use by persons who are eighteen (18) years or older. Any access to or use of the Site or Services by anyone under eighteen (18) years is expressly prohibited. By accessing or using the Site or Services you represent and warrant that you are eighteen (18) years or older.
How the Site and Services Work
43fitness offers a variety of coaching, personal training, health and wellness programs, all of which are detailed on and available for purchase on the Site. 43fitness also offers and makes available a variety of content through the Site and or Services (“Content”). A user of the site may view general public content on the site, including details and pricing of the Services we offer, and can purchase Services through the site or via an invoice.
To purchase any of the Services and/or access certain resources and features of the Site and Services, a user must complete a 43fitness profile (“Profile”) directly via the Site. We will maintain your Profile based upon the information you provide to us.
As part of the Profile registration process you may be asked to provide certain details or other information about yourself and/or your Company. You agree to provide only current, accurate and complete information and you agree to keep such information updated. It is a condition of your use of this site that all the information you provide current, accurate and complete.
Liability Waiver and Release
Prior to engaging the Services, you must sign a Liability Waiver and Release (“Release”), which form can be found here.
In-gym personal training Services are offered at Elan Yoga & Fitness in Fort Collins, Colorado. All of the 43fitness in-gym programs include FREE membership to Elan Yoga & Fitness for the duration of your program.
Details of the in-gym Services offered and current pricing can be found on the Site. Unless agreed otherwise in writing, 43fitness Services must be scheduled and paid for in advance. You may cancel a scheduled session without penalty if notice is provided to 43fitness within a reasonable time before the scheduled session. For early morning sessions, this means the night before. We strive to be flexible, but ask that you avoid last minute cancellations. You can expect we will do the same.
In the event of inclement weather, 43fitness follows the Poudre School District schedule for delays and closures. We will make reasonable effort to contact you if your session will be effected.
43fitness offers in-person Services. Details of the in-person Services offered and current pricing can be found on the Site. Unless agreed otherwise in writing, 43fitness Services must be scheduled and paid for in advance. You may cancel a scheduled session without penalty if notice is provided to 43fitness within a reasonable time before the scheduled session. For early morning sessions, this means the night before. We strive to be flexible, but ask that you avoid last minute cancellations. You can expect we will do the same.
In the event of inclement weather, 43fitness follows the Poudre School District schedule for delays and closures. We will make reasonable effort to contact you if your session will be effected.
43fitness offers access to online Services through the Site. Details of the online Services offered and current pricing can be found on the Site. You may sign up and pay for online Services through the Site.
The 43fitness website and app are proprietary creations of 43fitness LLC. All information is provided to the Client.
Our reputation is dependent upon your success. If within the first thirty (30) days you are not getting the results you expected or feel like the Services are not a good fit for you, 43fitness will refund the prorated portion of your in-person or in-gym Services fees within three (3) business days from the date of your written refund request. No questions asked.
The Site, Services and Content on the Site is protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Services and Content, including all associated intellectual property rights, are the exclusive property of 43fitness and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, or Content.
Subject to your compliance with these Terms, 43fitness grants you a limited, non-exclusive, non-transferable license, to access and view any Content solely for your personal and non-commercial purposes. You have no right to sublicense the license rights granted in this section. You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Services, or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by 43fitness or its licensors, except for the licenses and rights expressly granted in these Terms.
The Site and Services may contain links to third-party websites or resources. You acknowledge and agree that 43fitness is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by 43fitness of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the content, products or services on or available from such websites or resources.
All trademarks, service marks, logos, trade names and any other proprietary designations of 43fitness used herein are trademarks or registered trademarks of 43fitness. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
By signing below, initialing or clicking through (if on Website) these Terms & Conditions, you acknowledge that you have read, understand and agree to abide by them. We agree to abide by them as well.
IF YOU CHOOSE TO USE THE SITE, SERVICES OR CONTENT, YOU DO SO AT YOUR OWN SOLE RISK. THE SITE, SERVICES AND CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, 43FITNESS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. 43FITNESS MAKES NO WARRANTY THAT THE SITE, SERVICES, OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM 43FTINESS OR THROUGH THE SITE, SERVICES OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF (1) YOUR ACCESS TO AND USE OF THE SITE, SERVICES AND CONTENT, (2) THESE TERMS, AND (3) ANY BREACH OF THESE TERMS BY YOU, REMAINS WITH YOU. NEITHER 43FITNESS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT, WHETHER BASED ON (A) WARRANTY, (B) CONTRACT, (C) TORT (INCLUDING NEGLIGENCE), (D) STRICT LIABILITY, (E) PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY OR CAUSE OF ACTION, AND WHETHER OR NOT 43FITNESS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL 43FITNESS’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE AND SERVICES, OR CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES, OR CONTENT, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE 43FITNESS VIA THE SITE AND SERVICES IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN 43FTINESS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold 43Fitness and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Services, or Content or your violation of these Terms.
These Terms constitute the entire and exclusive understanding and agreement between 43Fitness and you regarding the Site, Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between 43Fitness and you regarding the Site, Services and Content.
We may assign these Terms in our sole discretion without restriction. You may not assign or transfer these Terms, by operation of law or otherwise, without 43Fitness’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by 43Fitness (i) via email (in each case to the address that you provide) or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Controlling Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Colorado and the United States of America, without regard to its conflict-of-law provisions. You and we agree to submit to the personal jurisdiction of a state court located in Larimer County, Colorado or a United States District Court, District of Colorado located in Denver, Colorado for any actions for which the parties retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights, as set forth in the Dispute Resolution provision below.
You and 43fitness agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of or inability to use the Services, Site or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and 43Fitness are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and 43Fitness otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Colorado and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Location and Procedure. Unless you and 43fitness otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and 43fitness submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. 43fitness will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes. Notwithstanding the provisions of the “Amendment/Modification” section below, if 43fitness changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of 43fitness’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and 43fitness in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of 43fitness to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of 43fitness. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
43fitness reserves the right, at its sole discretion, to modify the Site and/or Services or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or provide you with notice of the modification. We will also update the “Last Updated Date” at the top of these Terms. By continuing to access or use the Site or Services after we have posted a modification on the Site or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and Services.
If you have any questions about these Terms please contact us at firstname.lastname@example.org.