TERMS AND CONDITIONS
Effective: January 1, 2019
1. Our Terms
1.1. IMPORTANT — THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR ENTITY) (“YOU” OR “YOUR”) AND FYTTE INC. (HEREINAFTER “FYTTE,” “WE”, “US” OR “OUR”) THAT SETS FORTH THE LEGAL TERMS AND CONDITIONS FOR YOUR ACCESS TO AND USE OF WWW.FYTTE.IO AND ANY OTHER WEBSITE OWNED AND OPERATED BY FYTTE (THE “WEBSITE(S)” OR “SITE(S)”) AND ANY FYTTE SOFTWARE, INCLUDING ANY FYTTE MOBILE APPLICATIONS (THE “APP(S)”) OR OTHER SERVICES OFFERED BY FYTTE, ITS SUBSIDIARIES AND/OR AFFILIATES, FROM TIME TO TIME A (COLLECTIVELY, THE WEBSITE(S), APP(S) AND SERVICES ARE REFERRED TO AS “SERVICE(S)”).
1.2. IF YOU ARE A UNITED STATES RESIDENT, AND HAVE NOT CANCELLED A FYTTE MEMBERSHIP IN THE PRECEDING THREE (3) MONTHS, YOU MAY SUBSCRIBE TO A FYTTE MEMBERSHIP. AS A FYTTE MEMBER YOU WILL HAVE THE OPPORTUNITY TO SAVE ON PRICING FOR MONTHLY SESSIONS, AND YOUR SUBSCRIPTION WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF ONE MONTH AT FYTTE’S THEN-CURRENT SUBSCRIPTION FEES FOR SUCH SERVICES, UNLESS YOU OPT OUT OF THE AUTO-RENEWAL OR TERMINATE YOUR SUBSCRIPTION IN ACCORDANCE WITH THE TERMS HEREIN.
1.4. Why should you read these Terms? These terms create a legally binding agreement between you and us. By accessing or using the Site, you are accepting this Agreement and agreeing to use the Services in accordance with the terms and conditions in this Agreement. Some of our Services may have additional rules, policies, and procedures. Where such additional terms apply, we will make them available for you. A copy of these Terms and Conditions may be downloaded, saved and printed for your reference.
1.5. You confirm that you can enter the Agreement. As a condition of your use of the Services, you confirm and warrant to us that you meet the eligibility requirements set out in Section 4.3 and have the right, authority, and capacity to enter into these terms or, if you are under the age of majority in your jurisdiction of residence, you have obtained the consent of your parent or legal guardian to this Agreement.
1.6. Which provisions of the terms should you pay particular attention to? The key terms that you should consider in particular detail are: 3. Changes to the Site and these Terms; 8. Purchases, Payments, Cancellation, and Rescheduling; 10. Our responsibility for loss or damage; and 12. Account Suspension or Termination.
1.7. What to do if you don’t want to accept these terms? If you do not agree with all of the provisions of these terms, do not access and/or use the Services.
2. Information about Fytte and contact details
2.1. Who we are. Fytte is a service provided by Fytte Inc. a company registered in Delaware, USA.
2.2. Where we are based. Our registered office is at 1053 E. Whitaker Mill Rd. Suite 115, Raleigh, NC 27604
2.3. How to contact us. You can contact us by writing to us at email@example.com, or calling us on 919.766.2091.
2.4. How we may contact you. If we have to contact you we may do so by telephone or by email to the number and/or address you provided when you registered for an Account.
2.5. Email counts as “in writing”. When we use the words “writing” or “written” in these Terms, this includes emails. For contractual purposes, you consent to receiving communications from Fytte by email.
3. Changes to the Site and these Terms
3.1. Small changes. We reserve the right to change the terms and conditions of this Agreement or to modify or discontinue the Services offered by Fytte at any time. Those changes will go into effect on the effective date shown in the revised agreement. If we change this Agreement, we will give you notice by posting the revised agreement on the applicable website(s) or app(s) and sending an email notice to you using the contact information provided by you. Therefore, you agree to keep your contact information up-to-date and that notice sent to the last email address you provided shall be considered effective. We also encourage you to check this Agreement from time to time to see if it has been updated.
3.2. More significant changes. In addition, we may make more significant changes to the Site and/or these Terms, but if we do so and these changes materially or adversely impact your rights or use of the Site, we will notify you by email of such changes using the contact information provided by you. We may require you to provide consent to the updated agreement before further use of the Services is permitted. By continuing to use any Services after the new effective date, you agree to be bound by such changes. If the modified terms are not acceptable to you, please cease using the Services.
4. Service Description and Participation/Account Creation/Eligibility/Referrals and Promotions
4.2. Account Creation. In order to access certain features of the Website and Apps and to use certain Services, you may be required to register to create an account (“Account”). In connection with setting up your Account with Fytte, we may supply you with a user identification and/or password. In connection with any future use, you may be asked to input your user identification and/or password from time to time. You agree to be responsible for all activity that occurs under your Account and agree to be responsible for maintaining the security of your password and user identification. You agree to immediately notify Fytte of any unauthorized use of your user identification or password or any other breach of security. You can delete your Account at any time, for any reason, by writing Fytte at firstname.lastname@example.org.
4.3. Eligibility. Persons under 13 are prohibited from providing personal information on our Websites or via our Apps. If you are under the age of majority in your jurisdiction of residence, you may use the Services only with the involvement of your parent or guardian. Make sure that you review these terms with your parent or guardian so that you both understand all your rights and responsibilities. If you are under the age of majority in your jurisdiction of residence, you represent and warrant that you have obtained the consent of your parent or legal guardian to this Agreement.
4.4. Referral Discounts. We offer discounts for referring new users. To qualify for a referral discount, you must refer a new user who establishes a Fytte Account and reserves and completes a service within ninety (90) days of signing up for an account. Certain campaigns may modify qualification rules. Please note that referral discounts are given for the purpose of attracting brand new users to Fytte.
4.5. Promotional Codes. We may, in our sole discretion, create promotional codes that may be redeemed in your Account, or other features or benefits related to the Services, subject to any additional terms that we establish on a per promotional code basis (“Promo Codes”). Each benefit may only be redeemed once per account. Promo Codes for duplicate benefits will be voided. Only Promo Codes sent to you through official Fytte communications channels are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by us; (iii) may be disabled by us at any time for any reason without liability to us; (iv) may only be used pursuant to the specific terms that we establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use.
4.6. Reservation of Rights. We reserve the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event we determine or form a suspicion that the use or redemption of the Promo Code or the provision of any referral credit was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or the terms of this Agreement. Once you have redeemed a Promo Code or used any credit in your Account to purchase Services, no further promotional value adjustments or credits will be issued for any reason, including but not limited to, dissatisfaction with the Services.
4.7. Promotional Discounts. From time to time, Fytte may offer promotional discounts in the form of session credits when you purchase a session and/or subscribe to Fytte’s monthly subscription offering. Such promotional discounts may only be available in certain jurisdictions. You must purchase the promotional discount before the expiration of the promotional discount period or subscription period, but your credits may be used at any time. A limited quantity of promotional discounts may be available during any single promotional period. Promotional discounts are nontransferable, nonrefundable, not for resale, and not redeemable for cash or gift cards. Promotional discounts are good only for session credits. Additional terms and conditions may apply and will be made available to you during any promotional discount period.
5. Gift Cards – may be purchased a certain times throughout the year.
6. Acceptable Use
6.1. You are responsible for your use of the Services, and for any use of the Services made using your Account. Our goal is to create a positive experience in connection with our Services. To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to Fytte.
6.2. If you are an Instructor or Customer, you agree not to attempt to contact each other directly about the Services outside of the Services for a period of 6 months after the date of your last visit to the Services, except as may be permitted by these Terms or Fytte, or otherwise circumvent your relationship with Fytte.
6.3. When you use the Services, you agree that you will not:
(a) violate this Agreement or any Fytte rules regarding use of the Services;
(b) violate any law or regulation;
(c) breach any agreements you enter into with any third parties;
(d) violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;
(e) engage in any behavior that is abusive, harassing, indecent, profane, obscene, hateful or otherwise objectionable, including sexual misconduct;
(f) stalk, harass, or harm another individual;
(g) for the purpose of misleading others, create a false identity of the sender or the origin of a message, forge headers or otherwise manipulate identifiers in order to disguise the origin of any material transmitted through the Services or in connection with Fytte;
(h) impersonate any person or entity or perform any other similar fraudulent activity;
(i) harvest or otherwise collect or store any information (including personally identifiable information) about other users of the Services, including e-mail addresses, without the express consent of such users or alter transmission data;
(j) collect, distribute or gather personal or aggregate information, including Internet, e-mail or other electronic addresses, about Fytte’s customers or other users;
(k) upload, post, e-mail or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(l) use any means to scrape or crawl any Web pages or Content contained in the Websites or Apps (although Fytte may allow operators of public search engines to use spiders to index materials from the Websites for the sole purpose of creating publicly available searchable indices of the materials, and Fytte reserves the right to revoke these exceptions either generally or in specific cases);
(m) attempt to circumvent any technological measure implemented by Fytte or any of Fytte’s providers or any other third party (including another user) to protect the Websites or Apps; to the extent permitted by applicable law, attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Websites or Apps; or
(n) advocate, encourage, or assist any third party in the behavior above
7. Mobile Application License
7.1. Subject at all times to this Agreement, if you elect to download the App or bookmark, the following also applies: Fytte grants you a license to download, install and use a copy of the App on a single mobile device or computer that you own or control solely for your personal and professional use on the basis that the license is:
(a) revocable – we have the right to remove your ability to use the App in accordance with these Terms;
(b) non-exclusive – other people can access and use the App;
(c) non-transferable – you can’t pass this right to someone else or sublicense the license; and
(d) limited – the license does not extend beyond what has just been described above.
7.2. Furthermore, with respect to any App accessed through or downloaded from an App Store such as Google Play or the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (1) on a product that runs the operating system for which it was intended and (2) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App downloaded as a PWA or from a third party App Store is also subject to the provisions of Section 11.
8. Purchases, Payments, Cancellation and Rescheduling
8.2. Product Descriptions. Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products are subject to change without notice, and our current prices can be found on the Website. We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors. The inclusion of any Products on the Website at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Website. By placing an order, you represent that the Products ordered will be used only in a lawful manner. We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.
8.4. Automatic Renewal. When you subscribe to Fytte, your subscription will continue indefinitely until terminated in accordance with this Agreement. After your first month as a Fytte MEMBER, and again after any subsequent month, your subscription will automatically commence on the first day following the end of such period and continue for an additional month, at Fytte’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by writing email@example.com.
8.5. You may cancel your subscription at any time. If you cancel your subscription, your subscription will terminate immediately following such cancellation, and will not be renewed. Following termination of your subscription, you are not entitled to any discounts that were in effect during your subscription term, but you may continue to use any credits you have accumulated prior to termination; such credits will not expire. However, to the maximum extent permitted by applicable law, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Fytte to charge your payment provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Fytte does not receive payment from your designated payment provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Fytte may either terminate or suspend your subscription and continue to attempt to charge your payment provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
8.6. Shipments. Fytte currently only ships products to addresses within the 48 contiguous United States. When you place an order, we will confirm your address by sending an email to the email address you provided when you placed your order. Your placement of an order through our Website is an offer to purchase the products and/or services ordered and we may accept your order by processing your payment and shipping the products or making available your purchased services. Your receipt of an electronic or other form of order confirmation does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell. For any reason, we may decline to accept your order or any part of your order. No order will be considered accepted by Fytte until the product(s) has been shipped or service(s) made available. If some of products in your order are temporarily out of stock, we will ship the available products only and notify you of any products that cannot be fulfilled. If we decline to accept your order, we will attempt to notify you at the email address you provided. We further reserve the right any time after receipt of your order, without prior notice to you, to supply less than the quantity you ordered of any item. We may require additional verifications or information before accepting any order.
8.7. Returns. A Product is deemed irrevocably accepted upon your use of the Product. You may return purchased products that have not been opened or used within thirty (30) days for a refund of the purchase price for such returned product. You will be responsible for all shipping and handling charges in connection with any return.
8.8. What happens if we got the price wrong? It is always possible that, despite our best efforts, some of the Services may be incorrectly priced. We will normally check prices before accepting your order so that, where the correct price at your order date is less than our stated price at your order date, we will charge the lower amount. If the correct price at your order date is higher than the price stated to you, we will contact you for your instructions before we accept your order.
8.9. What if I think I was charged incorrectly? You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: firstname.lastname@example.org
8.10. For Instructors. Each Instructor hereby appoints Fytte as the Trainer’s limited payment collection agent solely for the purpose of accepting applicable payment from Customers. Each Instructor agrees that payment made by a Customer through Fytte shall be considered the same as a payment made directly to the Instructor, and the Instructor will provide its services to the Customer in the agreed-upon manner. Fytte reserves the right to charge the Instructor a commission on the fees paid by a Customer to the Instructor for the provision of Trainer’s services (“Fytte Commission”). Each Instructor understands that Fytte accepts payments from Customers as the Instructors’s limited payment collection agent and that Fytte’s obligation to pay the Instructor is subject to and conditional upon successful receipt of the associated payments from Customers. Fytte does not guarantee payments to Instructors for amounts that have not been successfully received by Fytte from Customers. In accepting appointment as the limited payment collection agent of the Instructor, Fytte assumes no liability for any acts or omissions of the Customers. Each Customer acknowledges and agrees that Fytte reserves the right, in its sole discretion, to charge Customer for and collect fees from the Customer. Fytte reserves the right at its discretion to cancel or reverse any payment, even if it has been previously confirmed by Fytte, as a result of any mistake or error, including any mistaken pricing or service description or other error.
8.11. What if I need to reschedule or cancel my appointment? If you are a Instructor or Customer, you agree to Fytte’s cancellation and rescheduling policy and the associated charges and payments, the terms and are incorporated herein by reference.
9. Ownership & Copyright
9.1. Ownership. The parties agree that all proprietary rights in the Services are and will remain the property of Fytte. This includes non-personally identifiable aggregate data collected by Fytte in connection with providing the Services, including usage statistics and traffic patterns, any and all rights, title and interest to which are hereby assigned to Fytte by you.
9.2. Copyright Restrictions.
(a) The Websites and Apps, including but not limited to software, content, text, photographs, images, graphics, video, audio and the compilation as a whole (“Content√”), are copyrighted under U.S. and Canadian copyright, trademark and other laws by Fytte or its licensors, unless otherwise noted. You must abide by all additional copyright notices or restrictions contained in the Websites, Apps or elsewhere. You may not delete any legal or proprietary notices in the Websites, Apps or elsewhere.
(b) Except as noted in Section 7 above: (1) the Websites and Apps may not be used, displayed, copied, reproduced, distributed, republished, uploaded, downloaded, posted, transmitted, mirrored or modified; and (2) except to the extent permitted by applicable law, you may not redistribute, sell, translate, modify, reverse-engineer or reverse-compile or decompile, disassemble or make derivative works of the Websites, Apps or any Content or components that are available on the Websites or Apps.
(c) You agree not to interfere or take action that results in interference with or disruption of the Websites or Apps or servers or networks connected to the Websites or Apps. You agree not to attempt to gain unauthorized access to other computer systems or networks connected to the Websites or Apps. Fytte reserves all other rights. Except as expressly provided herein, nothing on the Websites or as part of the Services will be construed as conferring any license under Fytte’s and/or any third party’s intellectual property rights. Notwithstanding anything herein to the contrary, Fytte may revoke any of the foregoing rights and/or your access to the Services, including the App, or any part thereof, at any time without prior notice.
9.3. Copyright Permission. Permission is granted for viewing the Website pages and Content on the Internet and via the Apps for your own informational purposes, subject to the terms and conditions of this Agreement. In the event that information is downloaded from the Websites or Apps, the information, including any Content, data or files incorporated in or generated by the Websites or Apps are owned by Fytte and Fytte retains complete title to the information and all property rights therein. All other rights are reserved. Reproduction of multiple copies of the Content, in whole or in part, for resale or distribution, is strictly prohibited except with the prior written permission of Fytte. To obtain written consent for such reproduction, please contact us at legal@Fytte.com.
9.4. Content License. As part of the Services, we may, if our sole discretion, permit you to post, upload, publish, submit or transmit certain content (“Your Materials”). We may also post a photograph or other visual likeness of you (“Your Image”). By making available any of Your Materials on or through the Services or if we make available Your Image on or through the Services, you (i) hereby grant to Fytte the right to use Your Materials and Your Image as necessary to provide the Services, promote the Services and improve the Services, and (ii) waive any and all moral rights that you may have in and to Your Materials and Your Image with respect to these uses. Fytte does not claim any ownership rights in any of Your Materials and nothing in this Agreement will be deemed to restrict any rights that you may have to use and exploit any of Your Materials. If you do not want to grant us permission to use Your Material or Your Image in accordance with this Agreement, please do not post, upload, publish, submit or transmit Your Materials or Your Image.
9.5. Copyright Policy. You acknowledge and agree that you are solely responsible for all of Your Materials that you make available through the Services. You represent and warrant that: (1) you either are the sole and exclusive owner of all of Your Materials that you make available through the Services or you have all rights, licenses, consents and releases that are necessary to grant to Fytte (or, the Trainer or Customer as applicable) the rights in Your Materials, as contemplated under this Agreement; and (2) neither Your Materials nor your posting, uploading, publication, submission or transmittal of Your Materials or Fytte’s (or, the Instructor’s or Customer’s as applicable) use of Your Materials or Your Image (or any portion thereof) on, through or by means of the Services will infringe, misappropriate or violate any patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
9.6. Trademarks/Use of Name or Brand. All Content, product names, trademarks, service marks and logos appearing as part of the Services, unless otherwise noted, are wholly owned or validly licensed by Fytte. Trademarks, service marks and logos owned by third parties remain the property of such third parties.
9.7. Feedback. If you submit any ideas, suggestions or testimonials “Feedback” to Fytte, you hereby transfer to us all rights in such Feedback without charge. You also agree that Fytte shall have the right to use and fully exploit such Feedback in any manner that we consider appropriate, including posting on the Internet. Please note that the Feedback you provide to us will not be treated as confidential information – accordingly, you agree not to submit to us any information or ideas that you consider to be confidential or proprietary. You may only submit ideas and material if you have obtained appropriate copyright and other permission to submit such materials and to permit Fytte to use such material without restriction. You agree that you will not violate or infringe the rights of third parties, including privacy, publicity and intellectual and proprietary rights, such as copyright or trademark rights.
10. Our Responsibility for Loss or Damage
TO INDIVIDUAL CUSTOMERS
THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS, LIABILITY OR CERTAIN DAMAGES OR LIMITATIONS OF REPRESENTATIONS MADE CONCERNING GOODS OR SERVICES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE BELOW EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.
10.1. DISCLAIMER: FYTTE DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE PRODUCTS OR SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY INSTRUCTORS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE INSTRUCTOR OR CUSTOMER (AS APPLICABLE) AND NOT FYTTE. THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE PRODUCTS AND SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT FYTTE ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN INSTRUCTORS AND CUSTOMERS, AND AS SUCH FYTTE DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY INSTRUCTOR(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY INSTRUCTOR(S) ARE MADE SOLELY AT THE DISCRETION OF THE TRAINER AND FYTTE HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE INSTRUCTOR(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT FYTTE SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE INSTRUCTOR TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).
10.2. THE SITE IS NOT BESPOKE TO YOU. YOU ACKNOWLEDGE THAT THE SITE HAS NOT BEEN DEVELOPED TO MEET YOUR INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE YOUR RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE SITE MEET YOUR REQUIREMENTS.
10.3. WE ARE RESPONSIBLE TO YOU ONLY FOR FORESEEABLE LOSS AND DAMAGE CAUSED BY US. IF WE FAIL TO COMPLY WITH THESE TERMS, WE ARE RESPONSIBLE FOR LOSS OR DAMAGE YOU SUFFER THAT IS A FORESEEABLE RESULT OF OUR BREAKING THESE TERMS OR OUR FAILURE TO USE REASONABLE CARE AND SKILL, BUT WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE THAT IS NOT FORESEEABLE. LOSS OR DAMAGE IS FORESEEABLE IF EITHER IT IS OBVIOUS THAT IT WILL HAPPEN OR IF, AT THE TIME THESE TERMS ARE ENTERED INTO AND BOTH WE AND YOU KNEW IT MIGHT HAPPEN.
10.4. WE ARE NOT LIABLE FOR BUSINESS LOSSES. [IF YOU ARE AN INDIVIDUAL CUSTOMER, WE ONLY MAKE THE SITE AVAILABLE FOR YOUR DOMESTIC AND PRIVATE USE. IF YOU ARE A TRAINER AND USE THE SITE FOR ANY COMMERCIAL, BUSINESS OR RE-SALE PURPOSE WE WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.
10.5. NO LIABILITY FOR DAMAGE CAUSED BY UNAUTHORISED ACCESS. WE WILL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF UNAUTHORISED ACCESS TO YOUR ACCOUNT WHICH IS NOT WITHIN OUR REASONABLE CONTROL.
10.6. DISCLAIMER. FYTTE DOES NOT MAKE ANY REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY, OR USEFULNESS WITH RESPECT TO THE SERVICES. YOU AGREE THAT ANY CLAIMS OR CAUSES OF ACTION ARISING OUT OF ANY ACTION OR INACTION OF ANY TRAINERS OR CUSTOMERS, SHALL BE EXCLUSIVELY BETWEEN YOU AND THE INSTRUCTOR OR CUSTOMER (AS APPLICABLE) AND NOT FYTTE. THE SERVICES ARE PROVIDED “AS IS.” YOU AGREE TO USE THE SERVICES SOLELY AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE SERVICES. ALTHOUGH WE INTEND TO TAKE REASONABLE STEPS TO PREVENT ANY DAMAGES TO YOU, WE ARE NOT LIABLE FOR ANY DAMAGES OR HARM ATTRIBUTABLE TO THE FOREGOING. YOU UNDERSTAND AND ACKNOWLEDGE THAT FYTTE ONLY PROVIDES A PLATFORM FOR COMMUNICATION BETWEEN INSTRUCTOR AND CUSTOMERS, AND AS SUCH Fytte DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY INSTRUCTOR(S) OR OTHER CUSTOMER(S). ANY REPRESENTATIONS MADE TO YOU BY ANY INSTRUCTOR(S) ARE MADE SOLELY AT THE DISCRETION OF THE INSTRUCTOR AND FYTTE HAS NO WAY TO MONITOR OR VALIDATE, AND SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR, ANY REPRESENTATIONS OR STATEMENTS MADE TO YOU BY THE INSTRUCTOR(S). YOU UNDERSTAND AND ACKNOWLEDGE THAT FYTTE SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE INSTRUCTOR TO YOU AS A RESULT OF YOUR USE OF THE SERVICE(S).
10.7. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, YOU AGREE THAT Fytte, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS WILL NOT BE LIABLE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FOR BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) ANY LOSS OF PROFITS; (B) ANY INDIRECT OR CONSEQUENTIAL LOSS; OR (C) TO THE EXTENT THAT YOU EXPERIENCE ANY LOSS OR DAMAGES RESULTING FROM YOUR USE OF THE SERVICES, INTERACTIONS WITH TRAINER(S) OR OTHER CUSTOMERS.
10.8. INDEMNIFICATION. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS FYTTE, ITS AFFILIATES, AGENTS, CONTRACTORS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS, FROM ANY AND ALL LIABILITIES, CLAIMS, EXPENSES AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS, ARISING OUT OF OR IN ANY WAY RELATED TO YOUR BREACH OF THIS AGREEMENT.
TO INDIVIDUAL CUSTOMERS, CORPORATE CUSTOMERS AND TRAINERS
10.9. LIABILITY CAP. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF FYTTE, ITS AFFILIATES, AGENTS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, CONTRACTORS, REPRESENTATIVES AND AGENTS TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, YOUR INTERACTION WITH ANY TRAINER(S) OR OTHER CUSTOMER(S), ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT RECEIVED BY Fytte FROM YOU DURING THE SIX-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, OR (B) $100.
10.10. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
10.11. WHAT WE DO NOT EXCLUDE. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(a) DEATH OR PERSONAL INJURY RESULTING SOLELY FROM OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS;
(b) FRAUD OR FRAUDULENT MISREPRESENTATION;
(c) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY APPLICABLE LAW.
11. Third Party Links & App Store
11.1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Where the Site contains links to Third-Party Links & Ads, these links are provided for your information and convenience only. We have no control over the contents of those sites or resources. Fytte does not review, approve, endorse or make any promises with respect to Third-Party Links & Ads. You use Third-Party Links & Ads at your own risk. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, not these Terms.
11.2. App Store. When you download our Apps, you may do so through a third party’s App Store. You acknowledge that the terms of this Agreement are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application (as such term is defined in Section 7):
(a) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Fytte and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Fytte.
(d) You and we acknowledge that, as between Fytte and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (1) product liability claims; (2) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
(e) You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application.
12. Account Suspension or Termination
12.1. When we might suspend or terminate your Account or Site access. We may, subject to applicable law, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time: (a) terminate this Agreement and/or your access to the Services, and (b) deactivate or cancel your Account.
12.2. What happens when these Terms terminate? Upon termination we will promptly pay you any amounts that we reasonably determine we owe you (if any) in our discretion. In the event Fytte terminates this Agreement or your access to the Services or deactivates or cancels your Account, you will remain liable for all amounts due hereunder.
12.3. Your right to cancel your Account. You may cancel your Account at any time by contacting us at the contact information set out in Section 2. Please note that if your Account is cancelled, we do not have any obligation to delete or return to you any of Your Materials that you have posted to the Services, including, but not limited to, any reviews or Feedback, nor, to the maximum extent permitted by applicable law, are we obligated to refund you any prepaid payments for the Services you have made on your Account.
12.4. Our right to cancel. If we terminate this Agreement and/or your access to the Services as a result of your violation of any applicable law or regulation, we may also, at our sole discretion, inform law enforcement or regulatory authorities of the circumstances surrounding such termination.
13. Reporting Complaints or Concerns
13.1. Contacting Fytte. To the extent you have any complaints or concerns that arise relating to your Services, including those relating to a Trainer or Customer, immediately contact Fytte at email@example.com or by calling the Trust & Safety Team at 919.766.2091. For emergencies, including with regard to personal safety, please dial 911 and/or contact your local law enforcement.
13.2. Investigating Complaints. During the course of investigating complaints and concerns, we may suspend your Account or Site access, consistent with Section 12 above. Upon completion of the investigation, Fytte may terminate your Account subject to the terms set forth in Section 12 above.
14. Other Important Terms
14.2. Anti-Spam. Fytte prohibits the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity or multiple messages similar in content to any person(s), entity(ies), newsgroup(s), forum(s), email list(s), or other group(s), individual(s) or list(s) unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. Fytte also prohibits using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with Fytte, and/or any products and Services. Fytte prohibits engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise. IF YOU OR ANYONE YOU KNOW IS “SPAMMED” BY SOMEONE IN RELATION TO Fytte’S SERVICES, PLEASE CONTACT US PROMPTLY VIA THE CONTACT MECHANISM MADE AVAILABLE VIA THE WEBSITE SO THAT WE MAY TAKE APPROPRIATE ACTION.
14.3. Governing Law and Jurisdiction. To the extent permitted by applicable by law, this Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware and we both agree to submit to the non-exclusive jurisdiction of the Districts.
14.4. Even if we delay in enforcing these Terms, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these Terms, or if we delay in taking steps against you in respect of your breaking these Terms, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
14.5. Rights and Remedies. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
14.6. Mandatory Arbitration and Dispute Resolution for United States and Canadian Users. Please read this Arbitration Agreement carefully. It is part of your contract with Fytte and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
a Applicability of Arbitration Agreement. To the extent permitted by applicable law, all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of the Services provided by Fytte that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Fytte, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
b Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Fytte should be sent to: General Council, Fytte Inc 1053 E Whitaker Mill Rd. Suite 115 Raleigh, NC 27604. After the Notice is received, you and Fytte may attempt to resolve the claim or dispute informally. If you and Fytte do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
c Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
d Time Limits. If you or Fytte pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Rules for the pertinent claim.
14.7. If a court finds part of these Terms illegal, the rest will continue in force. Each of the Sections of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining Sections will remain in full force and effect.
14.8. We may transfer these Terms to someone else. We may transfer our rights and obligations under these Terms to another organization – for example, this could include another member of our group of companies or someone who buys our business. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under these Terms.
14.9. Nobody else has any rights under these Terms. These Terms are between you and us. No other person shall have any rights to enforce any of its terms.
PLEASE PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS AND PLEASE CHECK BACK FREQUENTLY FOR ANY CHANGES TO THIS AGREEMENT.