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TERMS OF SERVICE

Last Updated as of June 15, 2020

  1. Definitions and Interpretation

Unless otherwise defined herein, or the context otherwise dictates, capitalized terms used in the Terms of Service shall have the indicated meanings set forth in Exhibit “A” attached hereto.

  1. Acceptance

    1. By directly or indirectly accessing or making use of the Services of TSR Gym Technik Ltd. (the “Vendor”), and/or by clicking the acceptance button, you: (i) signify your agreement to be bound by the terms and conditions set out in this terms of service (including its Exhibit) and the Vendor’s privacy policy found at http://www.trainerize.com/privacy.aspx incorporated herein by reference (collectively, the “Terms of Service”); and (ii) represent and warrant that you are older than 18 years of age and that you have, and at all times shall have, the necessary power, capacity and authority to enter into, abide by, comply with and perform your obligations under the Terms of Service.

    2. The Vendor reserves the right to, at its sole discretion, amend the Terms of Service at any time and without notice, the most current version of which shall always be available at http://trainerize.com/legal.aspx. You acknowledge and agree that the continued use of the Services by you or your Agents, following any amendment of the Terms of Service, shall signify your assent to, and acceptance of, such amended terms and conditions.

    3. Subject to the Terms of Service, if you do not agree to the Terms of Service, or any subsequently amended term or condition thereof, you and your Agents cannot use the Services, and any Terms of Service previously entered into must forthwith be terminated by you pursuant to Section 15(a).

  2. Special Consents and Acknowledgements

    1. YOU ACKNOWLEDGE AND AGREE THAT:

      1. IF YOU HAVE AN EMERGENCY, HAVE AN URGENT HEALTH CONCERN OR NEED TO OBTAIN MEDICAL ADVICE, YOU SHOULD REFRAIN FROM USING THE SERVICES AND THE CONTENT AND SHOULD IMMEDIATELY CONTACT YOUR PHYSICIAN OR GO TO THE NEAREST HOSPITAL;

      2. THE INFORMATION CONTAINED WITHIN THE SERVICES AND THE CONTENT IS INTENDED TO BE GENERAL IN NATURE, NOTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT CONSTITUTES MEDICAL ADVICE AND YOU SHOULD NOT RELY ON ANYTHING CONTAINED WITHIN THE SERVICES OR THE CONTENT AS A SUBSTITUTE FOR APPROPRIATE AND TIMELY CONTACT WITH YOUR PHYSICIAN;

      3. THE VENDOR DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO: (1) CONTENT FORMING PART OF OR PROVIDED THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION WORK-OUT PLANS, EXERCISE VIDEOS, AND OTHER SIMILAR CONTENT, WHETHER OR NOT PROVIDED BY OR ON BEHALF OF THE VENDOR AND (2) TRAINERS, INCLUDING WITHOUT LIMITATION THE QUALITY OR CERTIFICATION LEVELS THEREOF, AND THAT INTERACTIONS WITH TRAINERS THROUGH THE SERVICES OR OTHERWISE IS AT YOUR SOLE DISCRETION AND RISK;

      4. YOU SHOULD NEVER CHANGE OR STOP ANY COURSE OF MEDICAL TREATMENT WITHOUT FIRST CONSULTING YOUR PHYSICIAN; AND

      5. PARTICIPATING IN AN EXERCISE PROGRAM OR DIET CAN CAUSE INJURY, AND YOU ELECT TO DO SO ENTIRELY AT YOUR OWN RISK.

  1. License to Use Services

    1. Subject to your compliance with the terms and conditions of the Terms of Service, the Vendor hereby grants to you a revocable, personal, non-exclusive, non-sublicensable, non-assignable and non-transferable license to use the Services procured and/or purchased by you, or for you, exclusively in the manner set out in the Terms of Service.

    2. All right, title, interest, ownership rights and intellectual property rights in and to the Services and the trademarks of the Vendor, are and shall remain the property of the Vendor and its licensors, as applicable.

    3. The Vendor reserves all rights to the Services not expressly granted to you herein, and without limiting the generality of the foregoing, nothing in the Terms of Service grants to you, by implication, estoppel, or otherwise, any license or right to use the Services, any Content other than Your Content and/or the Vendor’s name, domain names, trademarks, logos, or other distinctive brand features, other than as expressly set out in the Terms of Service.

    4. Notwithstanding any other term of the Terms of Service, including without limitation Section 4(a), no TSR Customer, Trainer or Trainee shall be allowed or permitted to access or make use of the Services, until such TSR Customer, Trainer or Trainee has entered into the most current version of the Terms of Service.

  2. Information and Access IDs

    1. In order to use the Services, you must provide certain information through the Services, including without limitation your full legal name, physical address, email address and phone number. You may furthermore be asked to disclose your credit card details, payment processor account information and certain other information with respect to the payment of Fees and Charges (in each case as defined below) and other financial transactions facilitated by the Services. You represent and warrant that all information you provide to the Vendor through the Services, and otherwise, shall be true, accurate, current and complete, and you shall update such information as necessary to maintain its truth and accuracy. You furthermore represent and warrant that at no point shall you impersonate any person or entity or misrepresent any affiliation of a person or entity.

    2. You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a TSR Customer, ensure that only the Trainers and Trainees who have been authorised to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a TSR Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor.You acknowledge and agree that you shall: (i) maintain the security and confidentiality of your Access IDs; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services (iii) notify the Vendor promptly of any unauthorized access to, or use of the Services; (iv) not share your Access IDs with any other person unless agreed to in writing by the Vendor; (v) if you are a TSR Customer, ensure that only the Trainers and Trainees who have been authorised to do so obtain Access IDs from the Vendor, subject to, and in compliance with, the Usage Plan you subscribe to at such time; and (vi) if you are a TSR Customer, ensure that the Access IDs are not shared between any Trainers, Trainees and/or third-parties, unless agreed to in writing by the Vendor.

  3. Payment Processing

    Payment processing services for the Services are provided by Stripe Payments Canada Ltd., Recurly, Inc., Beanstream Internet Commerce, Inc and their respective affiliates or other payment processing services providers as the Vendor may choose from time to time (collectively referred to herein as the "Payment Processing Services Provider"). You hereby authorize the Vendor to share with the Payment Processing Services Provider the financial information, banking details, transaction information and account information provided by you and/or related to your use of the Services as is reasonably required for the provision of the payment processing features contemplated by the Services (including payment of Fees and Charges (each as defined below)). You also agree that the Vendor is not responsible or liable for the use or misuse of such financial information, banking details, transaction information and account information by the Payment Processing Services Provider or any third party.

    If a Payment Processing Services Provider is utilized to make or receive a payment in connection with your use of the Services, you should be aware that the terms and policies, including privacy and data gathering practices, of the Payment Processing Services Provider apply to your dealings with the Payment Processing Services Provider. Your account and any activities related to providing your personal information will be governed by the Payment Processing Services Provider’s terms and conditions, and the information provided in relation thereto will be governed by the Payment Processing Services Provider’s privacy policy.

    If you utilize the payment processing features of the Services, you shall not (i) submit what you believe or know to be a fraudulent charge, refund, dispute or other transaction (ii) use such payment processing features in a manner that is an abuse of or in violation of this Agreement, any terms or policies of the Payment Processing Services Provider, or applicable laws.

  4. Payment of Fees to Vendor

    1. If you are a TSR Customer, then you acknowledge and agree that:

      1. UNTIL THE TERMS OF SERVICE IS TERMINATED BY YOU OR THE VENDOR IN ACCORDANCE WITH SECTION 15, YOU SHALL PAY TO THE VENDOR MONTHLY OR ANNUAL FEES IN ADVANCE BASED ON THE USAGE PLAN SUBSCRIBED TO BY YOU DURING THE APPLICABLE PERIOD AND ALL IN-APPLICATION PURCHASES MADE BY YOU AND YOUR AGENTS DURING SUCH PERIOD, CALCULATED IN ACCORDANCE WITH THE FEE SCHEDULE (collectively, the “Fees”);

      2. THE FEES SHALL BE PAID BY CREDIT CARD OR IN ANOTHER FORM OF IMMEDIATELY AVAILABLE FUNDS ACCEPTABLE TO THE VENDOR, ACTING REASONABLY, AND IF YOU PROVIDE YOUR CREDIT CARD DETAILS THROUGH THE SERVICES OR OTHERWISE, YOU AGREE TO THE VENDOR AND ITS PAYMENT PROCESSING PROVIDER CHARGING THE FEES TO YOUR CREDIT CARD WITHOUT REQUIRING ANY FURTHER NOTICE TO, OR CONSENT FROM, YOU, AND YOU FURTHERMORE REPRESENT AND WARRANT THAT SUCH FEE PAYMENTS SHALL BE MADE WHEN DUE;

      3. if you fail to pay Fees when due, the Vendor shall be entitled to take any action set out in Section 15(b), including without limitation changing your Usage Plan to a Trial Usage Plan, and all overdue Fees shall accrue interest at the rate of 10% per annum, or at the highest legal interest rate, if less, and you shall reimburse the Vendor for all expenses (including reasonable attorneys’ fees) incurred by the Vendor to collect any amount that is not paid when due;

      4. you shall be responsible for any and all currency conversion charges as well as sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial or local governmental entity on any Fees other than any taxes imposed on, or with respect to, the Vendor’s income;

      5. notwithstanding termination of the Terms of Service, you shall not be entitled to a refund from the Vendor for any Fees or any pro rata portion of any Fees paid or payable to the Vendor pursuant to the Terms of Service: (A) in respect of any monthly billing cycle that had already commenced at the date of such termination, if you are subscribed to a monthly Usage Plan; and (B) in respect of any annual billing cycle that had already commenced at the date of such termination, if you are subscribed to an annual Usage Plan (by way of example, if you subscribe for an annual Usage Plan on July 5, 2015 and terminate the Terms of Service on July 10, 2016, then you shall be liable to pay the annual Fee for July 5, 2015 to July 4, 2016 and the annual Fee for July 5, 2016 to July 4, 2017, and you shall not be entitled to a refund from the Vendor in relation to any such Fees);

      6. NOTWITHSTANDING ANY OTHER TERM OF THE TERMS OF SERVICE, THE VENDOR SHALL BE ENTITLED TO AMEND THE FEE SCHEDULE FROM TIME TO TIME, BY GIVING YOU THIRTY (30) DAYS WRITTEN NOTICE OF SUCH AMENDMENT, WHICH NOTICE SHALL AMEND THE FEE SCHEDULE ACCORDINGLY, AND SHALL BE BINDING ON YOU, AS OF YOUR NEXT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE (the “Amended Fee Schedule”).

      7. IF YOU AGREE TO THE TERMS OF SERVICE AS AMENDED FROM TIME TO TIME BUT DO NOT AGREE TO A SPECIFIC AMENDED FEE SCHEDULE, YOU AND ALL TRAINERS AND TRAINEES WHO HAVE BEEN AUTHORISED TO ACCESS AND USE THE SERVICES PROCURED BY YOU CANNOT USE THE SERVICES AFTER THE END OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE, AND THE TERMS OF SERVICE MUST BE TERMINATED BY YOU PURSUANT TO SECTION 15(a) ON OR BEFORE THE LAST DAY OF YOUR CURRENT MONTHLY OR ANNUAL BILLING CYCLE, AS APPLICABLE; and

      8. you acknowledge and agree that the Vendor may, from time to time in its sole discretion, offer Trial Usage Plans, and that: (i) you shall comply with any and all additional terms, restrictions and/or limitations imposed by the Vendor on any such Trial Usage Plan; and (ii) the Vendor may at any time and for any reason, without liability to you or any other person alter, amend, modify or cancel any aspect of such Trial Usage Plans, including without limitation, the term, access rights, Fees, nature, scope, features, functionality, operation and Content associated therewith; and

  5. Products and Services, Trainerize Pay and Payment Facilitation

    1. If you are a Trainee:

      1. You understand that use of the Services may result in charges to you for the services or goods you receive from a TSR Customer and/or Trainer ("Charges "). After you have received services or goods obtained through your use of the Services, if you utilize the Services in such manner, the Vendor will, through its Payment Processing Service Provider, facilitate your payment of the applicable Charges to the applicable TSR Customer and/or Trainer (the "Service Provider"). Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Service Provider. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.

      2. Charges paid by you are final and non-refundable, unless otherwise determined by the Vendor or the Service Provider, as applicable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of the Services, any disruption to the Services, or any other reason whatsoever.

      3. The Services will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Access ID or account regardless of your awareness of such Charges or the amounts thereof. The Vendor may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.

      4. You may only use the Services for legitimate transactions with Service Providers. You are responsible for your relationship with Service Providers. Vendor is not responsible for the products or services you purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you receive, and for delivery, support, refunds, returns, and for any other ancillary services you receive from Service Providers. You will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services

    2. If you are a Service Provider:

      1. If you utilize the Services in such manner, you will receive payment through the Payment Processing Services Provider for any Charges actually paid by a Trainee related to services or goods provided by you through the Services, less any commissions, transaction fees or other deductions charged by the Payment Processing Services Provider and/or the Vendor. You hereby authorize the Vendor to process all payments due to you through its Payment Processing Services Provider.

      2. You hereby acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that the Vendor is required to withhold by law. You hereby acknowledge and agree that the Vendor is not responsible or liable for any failure or error made by the Payment Processing Service Provider in connection with the Services, or for any failure by a Trainee to make payment to you in connection with the Services.

      3. You hereby acknowledge and agree that you shall be responsible for all currency conversion charges and responsible and liable for the collection and remittance to the relevant government and taxing authorities of all sales, service, value-added, use, excise, consumption and any other taxes, duties and charges of any kind, if any, imposed by any federal, provincial, state or local governmental entity on any Charges. You hereby agree to defend, indemnify and hold harmless the Vendor and its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debt, and expenses (including but not limited to attorney's fees) arising from any failure by you to collect and remit such charges and amounts.

      4. You may only use the Services for legitimate transactions with Trainees. You are responsible for your relationship with Trainees. Vendor is not responsible for the products or services you publicize or sell, or that your Trainees purchase using the Services. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to Trainees. It is very important to the Vendor that your Trainees understand the purpose, amount, and conditions of charges you submit through the Services. With that in mind, when using the Services you agree to: (A) accurately communicate, and not misrepresent, the nature of any product or service, and the amount of the charge or transaction in the appropriate currency (B) provide Trainees a meaningful way to contact you in the event that the product or service is not provided as described; and (C) not use Services to sell products or services in a manner that is unfair or deceptive, exposes Trainees to unreasonable risks, or does not disclose material terms of a purchase in advance. You also agree to maintain a fair return, refund, cancellation, or adjustment policy, and clearly explain the process by which Trainees can receive a refund.

      5. You are responsible for knowing whether a transaction initiated by a Trainee is erroneous (such as a Trainee purchasing one item when they meant to order another) or suspicious (such as unusual or large purchases). If you are unsure if a transaction is erroneous or suspicious, you agree to research the transaction and, if necessary, contact the Trainee before fulfilling or completing the transaction. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services. You are solely responsible for providing support to Trainees regarding transaction receipts, product or service delivery, support, returns, refunds, and any other issues related to your products and services and business activities. Vendor is not responsible for or liable to you for authorized and completed transactions or charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any applicable laws.

      6. You hereby represent and warrant that: (A) any information you provide us about your business, products, or services is accurate and complete; (B) any Charges represent a transaction for permitted products or services, and any related information accurately describes the transaction; (C) you will fulfil all of your obligations to Trainees and will resolve all disputes with them; (D) you will comply with all laws applicable to your business and use of the Services; (E) you will not use the Services (including any payment processing features thereof), directly or indirectly, for any fraudulent or illegal undertaking, or to interfere in any manner with the normal operation of the Services.

  1. General Use of the Services - Permissions and Restrictions

    1. You shall not use the Services to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copyrights, trademark rights, contractual rights or any other legal right.

    2. You shall not copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Services.

    3. You shall not use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Services. You shall not collect or harvest any information in an automatic, bulk or systematic way, including any personally identifiable information, from the Services or Content.

    4. You shall not interfere with, or attempt to interfere with, the Services or the networks or services connected to the Services, whether through the use of viruses, bots, worms, or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware, or otherwise permit such activity.

    5. You shall use the Services in accordance with the Terms of Service and any and all applicable laws and regulations. The Vendor reserves the right to investigate and take appropriate action against anyone who, in the Vendor’s sole discretion, violates this provision, including without limitation, taking legal action or any action set out in Section 15(b).

    6. ​

  2. Content

    1. Unless otherwise expressly set out in the Terms of Service, all right, title, interest, ownership rights and intellectual property rights in and to Your Content, and your trademarks, are and shall remain your property, your Agents’ property and/or the property of its or their respective licensors, as applicable. Notwithstanding the foregoing, you hereby acknowledge and agree that some or all of Your Content may be inaccessible on or through the Services, including without limitation, due to an event set out in Sections 15 and 21(a)(iv).

    2. You hereby acknowledge and agree that Your Content may be disclosed to others in accordance with the selected privacy settings, utilized features and general functionality of the Services, and as such may be accessible to others including without limitation to: (i) your Agents; (ii) other users of the Services; (iii) the Vendor and the Vendor’s Agents; (iv) third-party service providers and their Agents; and (v) any other person to whom any of the foregoing persons have granted access to Your Content. The Vendor shall take commercially reasonable steps to ensure that Content identified as private within the functionality of the Services is not shared between TSR Customers (unless you select otherwise), but you acknowledge and agree that the Vendor cannot and does not guarantee any confidentiality with respect to Your Content whatsoever.

    3. You represent and warrant that you own or have all of the necessary licenses, rights, consents and permissions to use and authorize the Vendor to use all patent, trademark, trade secret, copyright and other proprietary rights in and to any and all of Your Content, to permit inclusion and use of Your Content in the manner contemplated by the Services and the Terms of Service without violating, infringing or appropriating any person’s privacy rights, publicity rights, copyrights, trademark rights, contractual rights or any other legal right. You hereby grant the Vendor an irrevocable, perpetual, worldwide, royalty-free, sublicensable and transferable license to use, host, reproduce, distribute, license, display, perform, modify and create derivative works of Your Content, exclusively for the purpose of providing the Services.

    4. The Vendor reserves the right to, with or without notice, remove Your Content for any reason whatsoever, including without limitation any of Your Content that: (i) allegedly infringes on another’s intellectual property rights; (ii) is patently offensive, exploitative, criminal, or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (iii) is considered adult or pornographic; (iv) harasses or advocates harassment of another person, or promotes illicit or criminal activity; (v) solicits personal information from anyone under 18; (vi) constitutes or promotes information that you know is false or misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (vii) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing, instant messaging, or “spamming”; or (viii) interferes or attempts to interfere with the proper working of the Services, disrupts or attempts to disrupt the normal flow of dialogue with an excessive number of messages (flooding attack) to the Services, prevents or attempts to prevent others from using the Services or otherwise negatively affects other persons’ ability to use the Services.

    5. You acknowledge and agree that the Vendor typically does not, and has no obligation to, review, censor or edit Your Content or any other Content, or the contents of any third-party site or application, but may at the Vendor’s sole discretion do so at any time. The Vendor does not make any guarantees about the accuracy, currency, reliability, suitability, effectiveness, quality or correct use of Your Content (including without limitation any fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any information you upload or otherwise make available through any document management features of the Services). You acknowledge and agree that the Vendor does not endorse Your Content or any other Content, the contents of any third-party site or application or any opinion, recommendation, or advice expressed therein, and the Vendor expressly disclaims any and all liability in connection therewith. You acknowledge and agree that the Vendor assumes no responsibility for the content, privacy policies, or practices of any third-party, including without limitation, any third-party service provider which may host Content.

    6. The Vendor contracts a third party to store Content, including Your Content, and, while these Terms of Service are in effect and you have an active account for access to the Services, will use commercially reasonable efforts to store and back up such Content at reasonable intervals as may be determined by the Vendor in its sole discretion. However, you should make your own interim back-ups of all of Your Content, including without limitation any and all Content you upload or otherwise make available through the document management features of the Services. Following any cancellation of your account, the Vendor is under no obligation to store Your Content and may delete your account and Your Content immediately upon such cancellation. Notwithstanding anything to the contrary set forth in these Terms of Service, the Vendor shall have no liability or responsibility for any loss or damage, however caused, arising from any loss of Your Content.

    7. If you are a Service Provider and you receive Content or other information through the Services that constitutes the Personal Information of a Trainee, including without limitation any fitness or health tracking data or nutritional data of a Trainee, you agree to only use and disclose such information for the purpose of providing fitness training and related services to such Trainee, and to use reasonable means appropriate to the sensitivity of such information to protect it from unauthorized access, collection, use and disclosure.

  3. Copyright and Trademark Compliance and Complaints

    1. If you are an intellectual property owner or an agent thereof and believe that either (1) any Content on the Services or (2) any material or activity contained on an online location to which the Services have referred or linked users, infringes upon your intellectual property rights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) and 512(d) for further detail):

      1. a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

      2. identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the Services are covered by a single notification, a representative list of such works on the Services;

      3. identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (or in the case of referrals or links that are claimed to lead to infringing material or activity, identification of the reference or link that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate that reference or link);

      4. information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;

      5. a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

      6. a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

        Notification pursuant to the DMCA should be submitted to:

        Copyright Manager TSR Gym Technik Ltd.
        1250 Homer Street Suite 305 Vancouver, BC, V6B 1C6 Canada
        Phone: 1-800-998-6439
        Email: copyright@trainerize.com

    2. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. Emails or notices sent to Vendor without a proper subject line, or for purposes other than communication about intellectual property claims, may not be acknowledged or responded to.

  4. Trademarks and Celebrity Material

    1. Vendor responds to complaints that Content infringes trademarks or celebrity material. Trademarks include logos, brand names, and trade dress, which is the distinctive visual appearance of a product or its packaging.

    2. Please be aware that celebrities, and sometimes others, may have a "right of publicity," which means that they may have a right to control commercial uses of their name, image, likeness, and other aspects of their identity. Although you may be a fan, you risk infringing celebrity rights if you use a celebrity name or likeness on the Services and you do not have the celebrity's permission.

    3. If you are a trademark owner or a celebrity and you believe your rights have been infringed on the Services, please submit a notification of infringement to our agent listed in the Section entitled "Copyright and Trademark Compliance and Complaints" above.

    4. To submit a notification, you must be the trademark owner or celebrity or an authorized agent of the trademark owner or celebrity.

    5. When submitting a notification of trademark or trade dress infringement, provide a copy of the relevant trademark or trade dress registration(s) from the U.S. Patent and Trademark Office or other national trademark office. Please also provide the location on the Services where you believe the infringement is occurring.

  5. Third Party Services

    The Services may provide you with access to services (including video content related services) provided by third parties (each a "Third Party Service"). Your access to and use of Third Party Services and the information, data and other content available through Third Party Services are subject to applicable third party service agreements or terms and conditions. Third Party Services are independent from the Vendor and the Services, and the Vendor does not endorse, and has no responsibility or liability for or control over, Third Party Services. Your use of Third Party Services and your dealings with the owners or operators of Third Party Services is at your own risk, and you will not make any claim against Vendor arising from, connected with, or relating to your use of Third Party Services or your dealings with the owners or operators of Third Party Services. Without limiting the foregoing, the Services utilize certain YouTube API Services, and by using the Services you are also agreeing to be bound by the YouTube Terms of Service (found at https://www.youtube.com/t/terms), as may be amended from time to time.

  6. Feedback

    1. You acknowledge and agree that any ideas, suggestions, concepts, processes, techniques, enhancement requests, recommendations, test results, data, information and other output or feedback which you and your Agents provide to the Vendor related to the Services, the Vendor or the Vendor’s business, including without limitation in any user forums made available by the Vendor, and any and all metadata, anonymized data, raw data and other information reflecting the access or use of the Services by you and your Agents (“Feedback”), shall become the Vendor’s property without any compensation or other consideration payable to you or your Agents, and you do so of your own free will and volition. The Vendor may or may not, in its sole discretion, use the Feedback, commercialize the Feedback and/or incorporate the Feedback in whatever form or derivative into the Services, its other products and services, or any future versions or derivatives of the foregoing. You shall and do hereby assign, and shall cause the assignment of, all rights on a worldwide basis in perpetuity to the Vendor in any and all Feedback and, as applicable, shall and do hereby waive, and shall cause the waiver of, all moral rights therein and thereto.

  7. Termination, Modification and Suspension

    1. SUBJECT TO SECTION 7(a)(v), YOU MAY TERMINATE THE TERMS OF SERVICE AT ANY TIME AND FOR ANY REASON BY INITIATING AND COMPLETING THE ACCOUNT CANCELLATION PROCESS SET OUT AT http://help.trainerize.com/entries/21757502-How-do-I-downgrade-or-delete-my-account- AND DISCONTINUING YOUR USE OF THE SERVICES.

    2. THE VENDOR MAY AT ITS SOLE DISCRETION AT ANY TIME AND FOR ANY REASON, WITH OR WITHOUT NOTICE: (I) BAN ANY COMPUTER OR DEVICE FROM ACCESSING THE SERVICES; (II) PREVENT ANY PERSON FROM ACCESSING THE SERVICES; (III) TERMINATE, MODIFY, SUSPEND OR DISCONTINUE ANY USAGE PLAN, ACCESS ID, TERMS OF SERVICE OR SERVICES; (IV) REMOVE ANY OF YOUR CONTENT; AND/OR (V) CHANGE YOUR USAGE PLAN TO A TRIAL USAGE PLAN.

  8. Warranty Disclaimer

    1. THE SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND ALL CONTENT FORMING PART OF OR RELATED TO THE SERVICES (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), AND ANY AND ALL INTERACTIONS BETWEEN YOU AND SERVICE PROVIDERS THROUGH THE SERVICES OR OTHERWISE, SHALL IN ALL CASES BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED OR STATUTORY, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, HARDWARE COMPATIBILITY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED FROM THE VENDOR OR ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THE TERMS OF SERVICE.

    2. THE VENDOR MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND ABOUT THE ACCURACY OR COMPLETENESS OF ANY SITES, APPLICATIONS, PAGES OR SERVICES LINKED TO OR THROUGH THE SERVICES. THE VENDOR DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR, ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD-PARTY THROUGH THE SERVICES OR ANY HYPERLINKED SERVICE OR WEBSITE FEATURED IN ANY USER SUBMISSION, BANNER, SPONSOR MESSAGE OR OTHER ADVERTISING. THE VENDOR SHALL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY OTHER USER OF THE SERVICES OR ANY THIRD-PARTY PROVIDERS OF ANY PRODUCT OR SERVICE.

  9. Limitation of Liability

    1. IN NO EVENT SHALL THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS DIRECTLY OR INDIRECTLY, BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOSS OF REVENUE, INCOME, PROFIT, REPUTATION, GOODWILL OR CUSTOMERS WHATSOEVER RESULTING FROM YOUR USE OF OR ACCESS TO THE SERVICES OR ANY CONTENT (INCLUDING WITHOUT LIMITATION ANY WORK-OUT PLANS, EXERCISE VIDEOS OR SIMILAR CONTENT PROVIDED BY OR ON BEHALF OF THE VENDOR OR ANY SERVICE PROVIDER), INCLUDING WITHOUT LIMITATION RESULTING FROM ANY: (I) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN THE SERVICES; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICES OR ANY CONTENT; (III) UNAUTHORIZED ACCESS TO OR USE OF THE VENDOR’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION OR OTHER INFORMATION STORED THEREIN OR THEREON; (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) TERMINATION OF ACCESS TO THE SERVICES OR REMOVAL OF ANY CONTENT BY THE VENDOR; (VI) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD-PARTY; OR (VII) ERRORS, MISTAKES, INACCURACIES OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT, WHETHER THE FOREGOING IS BASED ON WARRANTY, CONTRACT, TORT, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE AFFECTED PARTIES ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    2. THE TOTAL AGGREGATE LIABILITY OF THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE AND/OR USE OF, OR ACCESS TO, THE SERVICES SHALL BE LIMITED TO DIRECT DAMAGES SUFFERED BY YOU, NOT TO EXCEED THE LESSER OF CAD $100.00 AND THE AMOUNT ACTUALLY RECEIVED BY THE VENDOR FROM YOU PURSUANT TO THE TERMS OF SERVICE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ANY ACTION COMMENCED AGAINST THE VENDOR FOR ANY AND ALL CLAIMS RELATED TO THE TERMS OF SERVICE, SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER SUCH CAUSE OF ACTION SHALL HAVE FIRST ARISEN.

    3. THE VENDOR DOES NOT CONTROL CONTENT AND DOES NOT GUARANTEE THE ACCURACY OR INTEGRITY OF SUCH CONTENT. YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT THE VENDOR SHALL NOT BE LIABLE IN ANY WAY FOR ANY CONTENT INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

    4. YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY DISPUTE RELATED TO THE TERMS OF SERVICE YOU HEREBY GIVE UP YOUR RIGHT TO (I) HAVE A TRIAL BY JURY; AND (II) PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY DISPUTE RELATED TO THE TERMS OF SERVICE.

    5. ALL FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

  10. Indemnity by You

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE VENDOR AND ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES) ARISING FROM: (I) YOUR OR YOUR AGENTS’ USE OF OR ACCESS TO THE SERVICES; (II) ANY THIRD PARTY USE OF, OR ACCESS TO, YOUR ACCESS ID; (III) YOUR OR YOUR AGENTS’ VIOLATION OF ANY TERM OF THE TERMS OF SERVICE; (IV) YOUR OR YOUR AGENTS’ VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION YOUR CONTENT INFRINGING ANY INTELLECTUAL PROPERTY (INCLUDING COPYRIGHT), OR PRIVACY RIGHT; (V) ANY CLAIM THAT YOUR CONTENT CAUSED DAMAGE TO A THIRD-PARTY. (VI) ANY DISPUTE OR CLAIM ARISING BETWEEN YOU AND YOUR CUSTOMERS (INCLUDING TRAINEES) OR SERVICE PROVIDERS (INCLUDING TSR CUSTOMERS AND TRAINERS) IN ANY WAY RELATED TO OR CONNECTED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION WITH RESPECT TO PRODUCTS OR SERVICES PROCURED OR PURCHASED THROUGH THE SERVICES; OR (VII) ANY FRAUDULENT TRANSACTIONS OR CHARGES SUBMITTED OR PERMITTED BY YOU OR ON YOUR BEHALF OR IN WHICH YOU PARTICIPATE IN CONNECTION WITH YOUR USE OF THE SERVICES, INCLUDING ANY PAYMENT PROCESSING FEATURES THEREOF. THIS DEFENCE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THE TERMS OF SERVICE AND YOUR AND YOUR AGENTS’ USE OF THE SERVICES.

  1. Assignment

The Terms of Service, and any rights and licenses granted hereunder, may not be transferred, assigned or sold by you, but may be transferred, assigned and sold by the Vendor without restriction.

  1. Data Usage and Charges

The Services may use information and data transmission networks operated by third-parties to send data, information and Content from a computer or device to the Vendor’s servers, and to serve data, information and Content back to such computer or device. Depending on your wired or wireless data or similar plan with such third-party operators, you may incur charges from such third-party operators for use of its information and data transmission networks. You are solely responsible for any and all costs, including without limitation wireless and cellular data costs, you may incur as a result of the usage of the Services and/or as a result of data, information and Content submitted or received by your computer or device through the Services.

  1. Updates and Availability of Services

    1. You acknowledge and agree that:

      1. the Vendor may from time to time, at its sole discretion, make Updates available to you, but is under no obligation to do so;

      2. Updates may alter, amend or modify the Services, including without limitation, its nature, scope, features, functionality, operation and Content, and you agree to such Updates being made to the Services from time to time, at the sole discretion of the Vendor;

      3. Updates may require you to enter into new terms of service or, alternatively, shall be subject to all terms and conditions of the Terms of Service; and

      4. there may be occasions when the Services may be interrupted, including without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment.

  1. General

    1. Nothing in the Terms of Service shall be construed to constitute the Vendor and yourself as principal and agent, employer and employee, franchisor and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking. You shall have no right or authority to assume or create any obligation of any kind, express or implied, on behalf of the Vendor or waive any right, interest or claim that the Vendor may have, other than as expressly set out herein, or with the prior written consent of the Vendor.

    2. If there is any dispute between you and the Vendor about or involving the Services or the Terms of Service, you hereby acknowledge and agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of the Terms of Service or your access to or use of the Services, howsoever arising, provided always that the Vendor may seek and obtain injunctive relief (or an equivalent type of urgent legal relief) in any jurisdiction.

    3. The Terms of Service constitutes the whole legal agreement between you and the Vendor and governs your use of the Services (but excluding any services which the Vendor may provide to you under a separate written agreement), and completely replaces and supersedes any prior and contemporaneous agreements between you and the Vendor in relation to the Services. Notwithstanding the foregoing, you and the Vendor shall be entitled to enter into an additional superseding agreement which by its terms may expressly alter, amend or terminate the Terms of Service.

    4. If any provision of the Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms of Service, which shall remain in full force and effect. No waiver of any term of the Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and the Vendor’s failure to assert any right or provision under the Terms of Service shall not constitute a waiver of such right or provision.

    5. Sections 4(b), 4(c), 6, 7(a)(i), 7(a)(ii), 7(a)(iii), 7(a)(iv), 7(a)(v), 8, 9(a), 9(b), 9(c), 9(d), 10 through 19, 22 and such other provisions of the Terms of Service which by implication from its nature is intended to survive the termination or expiration of the Terms of Service, shall survive termination or expiration of the Terms of Service.

  2. Contact the Vendor

You may direct any questions, complaints or claims with respect to the general functionality and operation of the Services to the Vendor at help@trainerize.com.

 

EXHIBIT “A”

DEFINITIONS AND INTERPRETATION

“Access IDs” means the unique identification names and corresponding passwords assigned to a TSR Customer and the Trainers and Trainees who have been authorised to access and use the Services procured by such TSR Customer, and allowing such persons to access and use the Services, and “Access ID” shall be construed accordingly.

“Agents” means, with respect to a Party, such Party’s agents, employees, consultants, contractors and/or other authorized representatives, and “Agent” shall be construed accordingly.

“Content” means any material posted on, submitted on, uploaded to, made available to and/or appearing on the Services, including without limitation, data, information, text, graphics, photos, videos, charts, or location information.

“Fee Schedule” means the Vendor’s fee schedule, as provided by the Vendor to certain users of the Services from time to time, setting out the cost of the respective Usage Plans, and/or the cost of the respective In-Application Purchases, as applicable.

“In-Application Purchases” means the supplementary products, services and/or functionality offered for sale by the Vendor, which is not otherwise included in the cost of the Usage Plan subscribed to by a TSR Customer.

“Parties” means the parties to the Terms of Service, and “Party” shall be construed accordingly.

“Services” means the services offered or made available by the Vendor, including without limitation the Trainerize software as a service platform, and any website, application or widget associated therewith, as modified by the Vendor by way of Updates from time to time.

“Trainee” means a person directly or indirectly accessing or making use of the Services procured by a TSR Customer as a trainee, including without limitation, for the purpose of accessing, obtaining or otherwise acquiring fitness training services from the TSR Customer and/or a Trainer, and “Trainees” shall be construed accordingly.

“Trainer” means a person directly or indirectly accessing or making use of the Services procured by a TSR Customer as a trainer, including without limitation, for the purpose of offering, providing or otherwise furnishing fitness training services to one or more Trainees, and “Trainers” shall be construed accordingly.

“Trial Usage Plans” means the free or discounted Usage Plans, and “Trial Usage Plan” shall be construed accordingly.

“TSR Customer” means a person who procures Services from the Vendor, including without limitation, by placing an order for a specific Usage Plan with the Vendor, thereby allowing access to, and use of, such Services by the TSR Customer and the related Trainers and Trainees, and “TSR Customers” shall be construed accordingly.

“Updates” means versions of the Services that contain functional enhancements, modifications, error corrections and/or fixes relating to the Services, and “Update” shall be construed accordingly.

“Usage Plans” means the access plans to the Services offered for sale or, with respect to certain Trial Usage Plans, on a no-charge basis, by the Vendor to TSR Customers, each such plan allowing the TSR Customer and a certain set number of Trainers and Trainees to access and use the Services or certain features thereof procured by the TSR Customer, through the use of Access IDs, and “Usage Plan” shall be construed accordingly.

“you”, “your” and/or “yourself” means either the TSR Customer, Trainer or Trainee entering into the Terms of Service, as applicable.

“Your Content” means Content posted, submitted, made available, uploaded and/or displayed on or through the Services by you or your Agents, whether directly or through third party sites, applications or products (including without limitation any media (including photos, videos and accompanying music), fitness or health tracking data, nutritional data or other data or information that you may make available to the Services from a third party site, application or product and any and all information you upload or make available through any document management features of the Services).

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