End User Terms of Service
Last Modified: October 4, 2018
As a current or prospective customer of a gym or personal trainer with whom You (“You”, “Your” or “End User”) have a membership with, plan to have a membership with, or otherwise have conducted or plan to conduct business (the Club OS “Customer” or, if more than one, the “Customers”) and that directed You to this website, (including club-os.com, app-club.os.com, and any other website where these End User Terms are posted the “Sites”), You have the option to use certain Club OS services, which may include the Club OS Appointment service (the Appointment Services”), Club OS secure Messaging services (the “Messaging Services”), Club OS fitness profile and fitness management services (The “Fitness Tracking Services”) and payment services integrated into any Club OS service, including our web-based payment account management services located at app-club-os.com, and any other payment service that links hereto (the “Payment Services”). The Payment Services, together with the Sites, Appointment Services, and Messaging Services, and Fitness Tracking Services are referred to as our “Services.” As a condition of your use of any of these Services, you must agree to these End User Terms of Service, (the “End User Terms Terms”)
1. DESCRIPTION OF SERVICE
The Services may include an online messaging, payments, scheduling, and related services to assist the Club OS Customer in its business, as well as your ability as an End User to utilize a Club OS portal to enter information about your medical conditions, fitness levels, goals and other information to assist you with tracking your fitness and health progress and to assist the Club OS Customer Users with providing service to you. Such Services may be accessed independently or via a Client Portal. The Services may allow You to update your payment account information, make electronic payments to a Customer or authorize a Customer to activate a recurring payment schedule that charges your credit card or bank account. Such payment and schedule authorizations may be made over the phone or through our online Client Portal. In all cases, the payment will be charged to the payment account for which You provide account information and will be deposited into the bank account selected by the Customer.
From time to time, Club OS may develop and incorporate other features into the Services. Your use of such additional features, if any, is governed by these End User Terms.
2. REPRESENTATIONS AND WARRANTIES; ACKNOWLEDGEMENTS
You represent and warrant to Club OS and the Club OS Customer, and You covenant, that: (a) You or the person who access the system on your behalf to provide personal information, schedule an appointment, or make a payment, as applicable, has the power and authority to accept and enter into these End User Terms on Your behalf; (b) You are at least 18 years of age or a parent or legal guardian has authorized Your use of the Services; (c) the Services or content contained on or available through the Service is not an endorsement of the Customer by Club OS; and (d) Club OS is not responsible for any repercussions arising from Your use of the Services and You shall seek remedies arising from disputes in connection with services provided to You, messages delivered to You, the amounts you are charged, and Your payment thereof, solely from the Club OS Customer.
If You access the Sites to use the Services, You further represent and warrant to Club OS, and covenant, that You are willing and capable of electronically receiving, reviewing, printing and saving all forms, notifications, invoices, bills, receipts, materials, disclosures, terms or other content delivered to You through the Services and consent to the disclosure by the Club OS Customer of the information necessary to distribute such information and correspondence to You.
You represent and warrant that You will not use the Service to send any type of harassing or threatening messages to anyone, including but not limited to Club OS Customers. You further agree to refrain from using the Service in any manner that exposes or may expose Club OS, its Customers, partners, advertisers, or vendors, or any other person or entity using the Club OS Sites or Services to abuse, complaints, retaliation, connectivity issues, or other negative impact.
3. INTERNATIONAL TRANSACTIONS AND CUSTOMER DATA
While not technically supporting addresses outside of the United States, Club OS may in its sole discretion, permit Customers to utilize the Services to store personal data and process payments which originate from End Users and other consumers located outside the United States. If You are not a United States Citizen and You utilize any portion of the Sites or the Services, You acknowledge and agree that:
- Club OS is located in the United States as are Club OS’s third party payment processors, partners and advertisers, and Your personal information may be transferred to or processed in the United States;
- Using the system delete function to remove any of your personal data from Club OS merely prevents You or a Customer User from viewing or utilizing that data for any system function. It does not delete the data from Club OS systems. To have your personal data deleted from Club OS systems, you must contact the Club OS Customer with which you conduct business via Club OS and have the Customer make a written delete request to Club OS.
- You may not provide information that you are not authorized to provide us under laws applicable to you in your jurisdiction;
- Club OS may, at any time and without prior notice to You, cease processing transactions from and/or data relating to End Users located in any country other than the United States.
EXCEPT TO THE EXTENT OF CLUB OS’ REPRESENTATIONS, WARRANTIES OR COVENANTS EXPRESSLY SET FORTH IN THESE END USER TERMS, YOUR USE OF THE SERVICE IN NON-US JURISDICTIONS IS AT YOUR OWN RISK AND CLUB OS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO (I) CLUB OS’ COMPLIANCE WITH APPLICABLE NON-US LAW; (II) THE LEGALITY OF THE USE OF THE SERVICE IN ANY NON-US JURISDICTION OR WITH REPECT TO THE INFORMATION OF ANY NON-US CITIZENS AND RESIDENTS; AND (III) THE LEGALITY OF ANY TRANSFER OF INFORMATION FROM ANY NON-US JURISDICTION TO CLUB OS. CLUB OS WILL NOT, DIRECTLY OR INDIRECTLY, BE LIABLE FOR ANY FINES, JUDGEMENTS, CLAIMS, PENALATIES, OR OTHER LIABILITIES (COLLECTIVELY, “LOSSES”) AS A RESULT OF CLUB OS’ NON-COMPLIANCE WITH APPLICABLE LAW.
4. CHANGES TO TERMS OF SERVICE
Club OS reserves the right to revise these End User Terms and the documents referenced herein at any time in its sole discretion. Unless you are using our Sites, it is the Club OS Customer’s responsibility, and not that of Club OS, to notify You of such changes. You may view the current version of the terms governing Your use of the Services by clicking on the appropriate link included in the footer of our Sites. Any changes shall be effective immediately after the time at which such changes are posted on the Sites. Your continued use of the Services after the terms have been changed constitutes Your affirmative acknowledgment of, and agreement to abide and be bound by, the modified terms and conditions.
5. LICENSE AND USE OF THE SITE
You are hereby granted a limited license to use during the Term (as described below) including making incidental copies arising from the operation of Your browser, the Services, the Sites and the content contained on the Sites in conjunction with Your use of an End User Portal or any other interface to the Sites or the Services provided to You by a Club OS Customer. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works from, decompiling, reverse engineering, disassembling, transferring or using the Services or any content available on the Sites for any other purpose. Your license to use the Services is expressly conditioned on your compliance with applicable law, rules, regulations, and orders, and, and you represent and warrant that you comply with all such requirements, and you will not use the Services for any unauthorized and illegal purpose.
6. TERM, CANCELLATION, AND DATA RETENTION
These End User Terms, as amended, changed and modified from time to time, remain in effect until the earlier of (a) such time as You no longer use the Services and (b) such time as it is canceled or terminated, as provided herein (the “Term”). The Club OS Customer and Club OS each may cancel Your access to, or any aspect of, the Services at any time without notice. You may discontinue use of the Services at any time by providing written notice to the Club OS Customer via any communication method upon which you have both agreed.
7. PROPERTY RIGHTS
Club OS and other third parties other than You, as applicable, own all rights, title and interest in and to Services and the Sites, and all portions thereof, including, without limitation, all intellectual property rights in connection therewith.
8. NO WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE AND ALL CONTENT MADE AVAILABLE ON OR THROUGH THE SITE OR VIA THE SERVICE ARE PROVIDED TO YOU BY CLUB OS, AT THE REQUEST OF THE CLUB OS CUSTOMER, ON AN "AS IS" AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. THE CUSTOMER AND CLUB OS MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE
THE CUSTOMER AND CLUB OS ARE NOT RESPONSIBLE FOR (A) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY INVOICE, OR OTHER BILL, APPOINTMENT, STATEMENT OR OTHER ITEM GENERATED THROUGH THE SERVICE OR (B) THE ACCURACY, TIMELINESS OR RELIABILITY OF ANY NOTICE OR PAYMENT MADE THROUGH THE SERVICE.
OTHER THAN AS REQUIRED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCE WILL THE CUSTOMER OR CLUB OS, OR ANY OF THEIR RESPECTIVE AGENTS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON THE SERVICE OR ON INFORMATION OBTAINED THROUGH THE SERVICE OR THE SITE, OR BY YOUR RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE, INTEGRATED THIRD PARTY SERVICE, OR OTHER ADVERTISER.
THE CUSTOMER AND CLUB OS DO NOT WARRANT THAT THE SITE IS COMPATIBLE WITH YOUR EQUIPMENT OR THAT THE SITE IS FREE OF VIRUSES, WORMS, BOTS OR ANY OTHER HARMFUL, INVASIVE OR CORRUPTED FILES.
9. LIMITATION OF LIABILITY
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES, SITES, CONTENT ON THE SITES, AND DESCRIPTIONS OF THE SERVICES PUBLISHED ON THE SITES OR LINKED SITES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS, AND THE CUSTOMER AND CLUB OS SPECIFICALLY DISCLAIM ANY LIABILITY FOR SUCH INACCURACIES OR ERRORS. THE CUSTOMER AND CLUB OS DO NOT WARRANT OR REPRESENT THAT THE CONTENT ON THE SITES IS COMPLETE OR UP-TO-DATE. THE CUSTOMER AND CLUB OS ARE UNDER NO OBLIGATION TO UPDATE THE SITES, THE SERVICES OR THE CONTENT ON THE SITES. CLUB OS MAY CHANGE THE SITES, THE SERVICES AND THE CONTENT CONTAINED ON THE SITES, AND MAY MAKE IMPROVEMENTS OR CHANGES THERETO, AT ANY TIME WITHOUT NOTICE.
YOU AGREE THAT THE NEITHER THE CLUB OS CUSTOMER NOR CLUB OS, NOR ANY OF THEIR RESPECTIVE AGENTS, ADVERTISERS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WILL BE LIABLE, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, COST OF PROCURING SUBSTITUTE SERVICES OR LOST OPPORTUNITY) ARISING OUT OF, OR IN CONNECTION WITH, THE USE OF THE SITES, THE SERVICES, THE CONTENT ON THE SITES OR LINKED SITES, OR ARISING OUT OF, OR IN CONNECTION WITH, THE DELAY OR INABILITY TO USE THE SITES OR LINKED SITES, EVEN IF THE CLUB OS CUSTOMER OR CLUB OS, OR ANY OF THEIR RESPECTIVE AGENTS, ADVERTISERS, AFFILIATES, OFFICERS, DIRECTORS OR EMPLOYEES, WERE MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION ON LIABILITY INCLUDES, WITHOUT LIMITATION, THE TRANSMISSION OF ANY VIRUSES THAT MAY INFECT A USER'S EQUIPMENT, FAILURE OF MECHANICAL OR ELECTRONIC EQUIPMENT OR COMMUNICATION LINES, TELEPHONE OR OTHER INTERCONNECT PROBLEMS (E.G., YOU CANNOT ACCESS YOUR INTERNET SERVICES PROVIDER), UNAUTHORIZED ACCESS, THEFT, DATA LOSS, OPERATOR ERRORS, STRIKES OR OTHER LABOR PROBLEMS, OR ANY FORCE MAJEURE EVENT. THE CLUB OS CUSOTMER AND CLUB OS CANNOT, AND DO NOT, GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE SITES, THE SERVICES OR THE CONTENT RELATED THERETO.10. VIOLATIONS OF SERVICE TERMS
The Club OS Customer or Club OS may, each in their respective sole discretions, immediately terminate Your use of the Services if it believes that You are violating or have violated these End User Terms or the terms and conditions of the other documents referenced herein. Any such termination will be without prejudice to any other rights that Club OS may have against You arising from a violation of these End User Terms or of the other documents referenced herein.
11. GOVERNING LAW
The laws applicable to the use of the Sites and the interpretation of these End User Terms shall be the laws of laws of the State of Pennsylvania, without regard to any conflict of law provisions. You hereby consent to the exclusive jurisdiction of and venue in the courts located in the State of Pennsylvania, County of Philadelphia, in all disputes arising out of or relating to the Services,
You, the Club OS Customer and Club OS agree that any and all disputes, claims or controversies arising out of or related to the use of the Sites, the provision of the Services or these End User Terms, including any claims under any statute or regulation (“Disputes”), shall be submitted for binding arbitration. Unless the parties agree otherwise, any arbitration shall take place in the State of Pennsylvania, County of Philadelphia, and shall be administered by, and pursuant to the commercial arbitration rules of, the American Arbitration Association.
Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator’s authority to resolve Disputes and to make awards is limited to Disputes between You, the Club OS Customer and Club OS alone, and is subject to the limitations of liability set forth in these End User Terms. Disputes brought by either You, the Club OS Customer or Club OS against the other party(ies) may not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by You, the Club OS Customer and Club OS. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of this paragraph be stricken from these End User Terms or deemed otherwise unenforceable, then the entire section of these End User Terms labeled “Arbitration” shall be stricken from these End User Terms.
The provisions of the section of these End User Terms labeled “Arbitration” and all arbitration awards duly made in connection therewith may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party(ies) against whom enforcement is ordered. All arbitration awards duly made under these End User Terms shall not be subject to review or appeal except as permitted by applicable law. Any provision of these End User Terms to the contrary notwithstanding (a) You, the Club OS Customer or Club OS may seek interim relief from a court located in the State of Pennsylvania, County of Philadelphia to protect such party’s rights or property while arbitration is pending, and (b) Club OS may bypass the aforementioned arbitration process in cases of fraud or other crimes against Club OS, interference with Club OS’ technical operations or violations of Club OS’ rights or property.
You are solely responsible for maintaining the confidentiality and security of the username(s) and password(s) for Your Club OS End User account(s), and You assume all liability for sharing or disclosing such username(s) and password(s). You agree to immediately contact the applicable Club OS Customer if You become aware that the security of the username(s) and password(s) for Your End User account(s) with Club OS may have been compromised or if there has been unauthorized access to the username(s) and password(s) for Your End User account(s). You are solely responsible for all activity occurring under the username(s) and password(s) for Your End User account(s). Access to and use of password-protected and/or secure areas of the Sites and Services is restricted to authorized users only.
You acknowledge that this is an online service. A printed version of these electronically presented End User Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these End User Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
You agree that regardless of any statute or law to the contrary, any claim or cause of action You bring arising out of or related to Your use of the Services, or these End User Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
Notwithstanding any cancellation or termination of these Services, or of Your account or Your enrollment, these End User Terms shall survive any such cancellation or termination.
Your acceptance of these End User Terms and use of the Services do not create a joint venture, partnership, employment or agency relationship between You and Club OS. You shall not represent in any way that You are in partnership with, are a joint venturer of, or have any employment of agency relationship with Club OS. You may not assign, delegate or transfer Your rights or obligations under these End User Terms and any such prohibited assignment, delegation or transfer shall be null and void.
The section titles in these End User Terms are solely used for the convenience of the parties and have no legal or contractual significance.