Terms of Service
These Terms of Service (the “Agreement”) set out the terms on which Fittur, LLC., doing business as Fittur (“Fittur” or “we”) will provide Fittur software and services on the Fittur website, fittur.com, and other Fittur controlled or operated websites and through Fittur’s mobile device applications (collectively, the “Service”) to you, a user of the Service (“You” or “User”), as well as the benefit of this Agreement to any Fittur officer, founder director, employee or agent of Fittur or corporate entity affiliated with Fittur (each, a “Fittur Affiliate”).
By providing Your email address and creating an account as a User of the Service, or by otherwise using the Service, You agree to comply with and be bound by this Agreement, which we may change at any time by posting notice on the Service. Users bound by this Agreement include both those using Fittur for their own diet and exercise goals (sometimes referred to as “Individual Users”) and coaches or trainers using Fittur to provide coaching services and advice to others (referred to as “Coaches”). PLEASE READ THIS AGREEMENT CAREFULLY, AND PLEASE CHECK THESE TERMS AND CONDITIONS PERIODICALLY FOR CHANGES. If You do not agree to these terms and conditions, please do not use the Service.
If You register as a User, You represent and warrant to Fittur that: (i) You are of legal age to form a binding contract; (ii) You will provide Fittur with accurate, current and complete registration information; and (iii) Your registration and Your use of the Service is not prohibited by law. Fittur reserves the right to suspend or terminate Your registration, or Your access to this Service, with or without notice to You, in the event that You breach any term of this Agreement.
The Service is not directed at Users under the age of 18. If You are under the age of 18, You are not permitted to register as a User or use the Service.
3) Ownership of the Service and Related Intellectual Property.
All the text, images, marks, logos, compilations (meaning the collection, arrangement and assembly of information), data, other content, software and materials displayed on the Service or used by Fittur to operate the Service, excluding any User Content (as defined below) is proprietary to us or to third parties. Fittur expressly reserves all rights, including all intellectual property rights, in all of the foregoing, and except as expressly permitted by this Agreement, any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of them is strictly prohibited.
The mark Fittur is a registered trademark pending, the mark “Macro Targets” is a registered trademark pending; and the mark Fittur Logo is a registered trademark pending, all are marks of Fittur and they may not be used in connection with any service or products other than those provided by Fittur in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Fittur. Any use of such marks, or any others displayed on the Service, will inure solely to the benefit of their respective owners.
The invention Body Fat Dial is a design patent pending tool, the invention Calorie Dial is a design patent pending tool and the Macro Target Countdown is a design patent pending. Any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation of these inventions without written consent of Fittur is strictly prohibited. Any patent infringement of either the “Body Fat Dial”, the “Calorie Dial” or the “Macro Target Count Down” will be prosecuted to the full extent of the law.
All images, designs and computer code within the Service are copyright protected and any use, redistribution, sale, decompilation, reverse engineering, disassembly, translation or other exploitation without written consent of Fittur is strictly prohibited. Any violation of copyright will be prosecuted to the full extent of the law.
4) Your Registration and User Content.
5) License to Use the Service.
Subject to the terms of this Agreement, Fittur authorizes You to use the Service for Your personal, non-commercial purposes. You may not remove any copyright, trademark or other proprietary notices that have been placed in the Service. Except as expressly permitted above, modification, reproduction, redistribution, republication, uploading, posting, transmitting, distributing or otherwise exploiting in any way the Service, or any portion of the Service, is strictly prohibited without the prior written permission of Fittur. The Service is licensed, not sold, and You obtain no rights in any copy of software related to the Service other than the rights described in this paragraph.
You agree, and represent and warrant, that Your use of the Service, or any portion thereof, will be consistent with the foregoing license, covenants and restrictions and will neither infringe nor violate the rights of any other party or breach any contract or legal duty to any other parties. In addition, You agree that You will comply with all applicable laws, regulations and ordinances relating to the Service or Your use of it, and You will be solely responsible for Your own individual violations of any of any such laws.
You are solely responsible for obtaining the equipment and telecommunication services necessary to access the Service, and all fees associated therewith (such as computing devices and Internet service provider and airtime charges).
We retain the right to implement any changes to the Service at any time, with or without notice. You acknowledge that a variety of Fittur actions may impair or prevent You from accessing the Service at certain times and/or in the same way, for limited periods or permanently, and agree that Fittur has no responsibility or liability as a result of any such actions or results, including, without limitation, for the deletion of, or failure to make available to You, any content or services.
6) Service Restrictions.
No User of this Service shall submit, upload to, distribute through or otherwise post to the Fittur website (including any Interactive Feature) any material that:
(a) is libelous, defamatory, threatening, abusive, scandalous, obscene, pornographic or unlawful or that encourages a criminal offense;
(b) contains any advertising, promotional, solicitation or other commercial material;
(c) contains material from other copyrighted works without the written consent of the owner of such copyrighted material, other than reasonable excerpts permitted under the copyright doctrine of fair use;
(d) infringes any copyright or violates any property rights, rights of privacy or publicity, or any other rights of any third party;
(e) contains any statement, formula, direction, recipe, prescription or other matter that involves a reasonably foreseeable risk of injury or damage to the material’s readers or others; or
(f) contains any software viruses or any other code, file or program that is designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment.
Neither You nor any other party may, without our prior written permission, deep link to, frame, spider, harvest or scrape the Service or User Content, or otherwise access the Service or Content for any purposes, or use any machine, electronic, web-based or similar device to read or extract the Service or User Content by machine based or automated means.
7) Fittur Rights
Fittur reserves the right (but is not obligated) to do any or all of the following:
(a) record User Content;
(b) Investigate an allegation that User Content or User registration information does not conform to the terms and conditions of this Agreement;
(c) remove User Content or User registration information that is abusive, illegal or disruptive, or that otherwise fails to conform with the terms and conditions of this Agreement;
(d) monitor, edit or disclose any User Content or User registration information, and otherwise generally monitor Your use of the Service; or
(e) edit or delete any User Content or User registration information, regardless of whether such content violates any terms and conditions of this Agreement.
Fittur and Fittur Affiliates have no liability or responsibility to Users of the Service or any other person or entity for performance or nonperformance of the aforementioned activities.
8) Links to Third Party Website Are Not Endorsements.
Fittur website may contain links to third party websites. The linked sites are not under our control, and we are not responsible for the contents of any linked site. We provide these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked site by Fittur. You should make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any of these third parties.
9) Ideas Submitted to Fittur
Fittur is pleased to hear from You and welcomes Your comments about the Service. In the event that You submit ideas or suggestions for the Service (“Service Comments”), the Service Comments will be deemed, and will remain, the sole property of Fittur. None of the Service Comments will be subject to any obligation of confidence on the part of Fittur, and Fittur Affiliates will not be liable for any use or disclosure of any Service Comments. Without limiting the foregoing, Fittur will be entitled to unrestricted use and other exploitation of the Service Comments for any purpose whatsoever, commercial or otherwise, by any means, by any media, without compensation to the provider, author, creator or inventor of the Service Comments.
10) Warranty Disclaimers, Limitations of Liability and Indemnity.
You acknowledge that Your diet and exercise activities involve risks, which may involve risk of bodily injury or death, and that You assume those risks. You should consult a licensed/certified healthcare professional prior to beginning or modifying any diet or exercise program that You undertake, and You acknowledge that Fittur has advised You of the necessity for obtaining such consultations. The Service is a source of information, but it does not provide medical advice. Fittur makes no representation that Fittur is a provider of medical services as defined by federal and state laws and regulations pertaining to medical providers and other health care related matters, or that Fittur has any obligations with respect to (a) the appropriateness of Your engaging in a weight loss program; (b) the results (or lack of results) obtained by Your use of the Services; and (c) any health-related matters arising in connection with Your use of Fittur. In no event shall Fittur be liable for any death or bodily injury that You suffer, or that You cause to any third party, in connection with Your use of the Service or any diet, exercise or other activity You undertake in connection with Your use of the Service.
Use of Coaches: Fittur does not screen or test Coaches nor verify the qualifications or experience of any Coach, and Fittur is not responsible for any advice, recommendation, act or omission of any Coach. If You use a Coach in connection with the Service, You do so at Your own risk. You accept the responsibility of verifying whether the Coach is appropriately qualified or experienced and of determining for Yourself whether You should follow any advice or suggestions from the Coach.
Coaches: You shall only act as a Coach if You have appropriate skills, experience and qualifications to do so. If You provide coaching services to any Individual User, You agree that Fittur is not responsible or liable for any act or omission of the Individual User or for the fitness of an Individual User to receive coaching services. Fittur does not screen Individual Users and is not responsible for determining whether an Individual User is prepared for or medically fit for a diet or exercise regime.
Warranties. WITHOUT LIMITATION OF THE FOREGOING, FITTUR AND FITTUR AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SERVICE OR USER CONTENT. THE SERVICE AND USER CONTENT ARE PROVIDED IN “AS-IS” CONDITION, AND FITTUR AND FITTUR AFFILIATES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED TO THE EXTENT PERMITTED BY LAW, INCLUDING: ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE; THAT THE SERVICE AND USER CONTENT WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE OPERATION, USE OR OTHER EXPLOITATION OF THE SERVICE AND USER CONTENT, AND AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED FROM THE SERVICE OR THE USER CONTENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FITTUR OR ANY FITTUR AFFILIATE OR THROUGH THE SERVICE OR USER CONTENT WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOU USE THE SERVICE AND USER CONTENT AT YOUR OWN RISK, AND NEITHER FITTUR NOR FITTUR AFFILIATES WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR RELATING TO ANY OF THEIR OPERATION, USE OR OTHER EXPLOITATION.
UNDER NO CIRCUMSTANCES WILL YOU BE ENTITLED TO RECOVER FROM FITTUR OR FITTUR AFFILIATES ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS OR LOSS OF USE), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING FROM OR RELATING TO THE SERVICE OR USER CONTENT, EVEN IF FITTUR OR FITTUR AFFILIATES HAVE BEEN INFORMED OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AGGREGATE LIABILITY OF FITTUR AND FITTUR AFFILIATES FOR ANY AND ALL DAMAGES ARISING IN CONNECTION WITH YOUR USE OF THE SERVICE OR THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT OF FEES PAID BY YOU TO FITTUR IN THE THREE (3) MONTHS BEFORE THE LIABILITY IS ALLEGED TO HAVE ARISEN, OR, IF NO AMOUNTS WERE PAID DURING SUCH PERIOD, THE AMOUNT OF $1. THIS LIMITATION WILL APPLY WHETHER THE DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF WARRANTIES OR OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
You shall defend, indemnify and hold harmless Fittur and Fittur Affiliates against any and all claims, actions, proceedings, suits, liabilities, losses, damages, costs, expenses and attorneys’ fees arising in connection with Your use of the Service or Your breach of any provision of this Agreement. Fittur reserves the right the assume the sole control of the defense and settlement of any claim, action, suit or proceeding for which You are obliged to provide indemnification hereunder. You will cooperate with Fittur with respect to such defense and settlement.
11) Link to the Privacy Statement.
12) Digital Millennium Copyright Act.
Fittur complies with the provisions of the Digital Millennium Copyright Act applicable to internet service providers (17 U.S.C. §512, as amended). If You have any complaints or objections to material posted on the Fittur website You may contact our Designated Agent at the following address:
Any notice alleging that materials on this website infringe intellectual property rights must include the following information:
(a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
(b) a description of the copyrighted work or other intellectual property that You claim has been infringed;
(c) a description of the material that You claim is infringing and where it is located on the website;
(d) Your address, telephone number, and email address;
(e) a statement by You that You have a good faith belief that the use of the materials on the website of which You are complaining is not authorized by the copyright owner, its agent, or the law; and
(f) a statement by You that the above information in Your notice is accurate and that, under penalty of perjury, You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If material that You have posted to the website has been removed or disabled, You may file a counter notice pursuant to 17 U.S.C. §512 (g). To be effective, the counter notice must be a written communication sent to the designated agent email address listed above that includes the following:
(g) a physical or electronic signature of the subscriber;
(h) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(i) a statement under penalty of perjury that You have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
(j) Your name, address, and telephone number, and a statement that You consent to the jurisdiction of Federal District Court for the judicial district in which the address is located or, if Your address is outside of the United States, for any judicial district in which Fittur may be found, and that You will accept service of process from the person who provided notification under subsection 17 U.S.C. §512 (c)(1)© or an agent of such person.
15) Applicable Law and Jurisdiction; Compliance.
All disputes arising out of or relating to this Agreement or the Service shall be resolved exclusively by binding arbitration conducted in Denver, Colorado before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”) then in effect and the further procedures set forth herein. In the event that the American Arbitration Association is unavailable or unwilling to administer the arbitration, and the parties are unable to agree to a substitute, a substitute shall be appointed by the court. The Arbitrator shall have authority to issue any and all remedies authorized by law. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 2 et seq., and the laws of the State of Colorado without reference to principles of conflicts of laws. Notwithstanding any rules of the American Arbitration Association to the contrary, any claims shall be adjudicated on an individual basis, and YOU WAIVE ANY RIGHT TO BRING ANY CLAIM AS A REPRESENTATIVE OF A PROPOSED CLASS, ON AN AGGREGATED OR MASS BASIS, OR AS A PRIVATE ATTORNEY GENERAL, OR TO CONSOLIDATE ARBITRATION PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES THERETO. Any award rendered by the Arbitrator shall be final, conclusive and binding upon the parties hereto. In connection with any arbitration proceeding pursuant to this Agreement, unless the Arbitrator shall determine otherwise, each party shall bear its own costs and expenses. Notwithstanding the foregoing, You may at Your option file an individual claim in any small claims court for disputes or claims within the scope of its subject matter jurisdiction if such court has personal jurisdiction. Fittur does not hereby waive any defense that such jurisdiction may be lacking in Your state. Without derogation of the parties’ obligation to arbitrate as set forth herein, for any claims other than those in small claims court, jurisdiction for any court proceedings arising out of or relating to this Agreement or the Service shall be vested exclusively in, and venue shall be laid in, the state or federal courts sitting in Wilmington, Delaware, except that, following confirmation of an arbitration award in a state or federal court in Wilmington, Delaware, a judgment arising therefrom may be executed in any court of competent jurisdiction.
16) Cloud Services and Third Party Services.
Without limitation of the disclaimers and limitations of liability set forth in Section 10, You acknowledge and agree as follows: (a) we provide the Service using cloud computing services of one or more third party cloud providers (collectively, the “Cloud Providers”); (b) the price at which we could afford to offer the Service would vary if we provided the Service other than using such cloud services; and (c) we shall not be responsible or liable to You for any act, omission or failure of any Cloud Provider.
You acknowledge that we do not endorse, and we are neither responsible nor liable for, the content, quality, interpretations or recommendations of the Fat Secret Platform, the Fat Secret Products or any other Third Party Services. Fittur Does not assume, and hereby disclaims, all liability, obligation or responsibility in connection with any transactions between You and Fat Secret or any other provider of Third Party Services. These transactions are entirely at the risk of You and such third party. If You have a dispute with Fat Secret or other third party, You release Fittur (and our agents, officers, founder, and employees) from 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 dispute.
17) Miscellaneous Provisions.
No delay or omission by Fittur in exercising any of its rights occurring upon any noncompliance or default by You with respect to this Agreement will impair any such right or be construed to be a waiver thereof, and a waiver by Fittur of any of the covenants, conditions or agreements to be performed by You will not be construed to be a waiver of any succeeding breach thereof or of any other covenant, condition or agreement hereof contained. As used in this Agreement, “including” means “including but not limited to.” If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement will remain in full force and effect and will be reformed to be valid and enforceable while reflecting the intent of the parties to the greatest extent permitted by law. Except as otherwise expressly provided herein, this Agreement sets forth the entire agreement between You and Fittur regarding its subject matter, and supersedes all prior promises, agreements or representations, whether written or oral, regarding such subject matter. You agree that the electronic text of this Agreement constitutes a writing and Your assent to the terms and conditions hereof constitutes a “signing” for all purposes. There shall be no third party beneficiaries to this Agreement other than Fittur Affiliates. In no event shall Fittur be liable for any failure to comply with this Agreement to the extent that such failure arises from factors outside Fittur’s reasonable control.