TERMS & CONDITIONS
The Site is owned by Kinetic Output Fitness LLC d/b/a Fitopia (“Fitopia”, “we”, “us” and “our”, as applicable). Fitopia and its affiliates, provide this site and related services to you (the “user”, “you”, and “your”, as applicable), the user of this Site, only for your personal use and subject to your acceptance of and compliance with this Agreement. Please read the terms contained herein carefully before using this Site and/or the services associated therewith. Your use of this Site and the associated services confirms your unconditional acceptance of these terms and conditions.
Changes to this Agreement
1. We reserve the right, in our sole discretion, to revise this Agreement at any time. Any changes to these terms will be included in a revised version of this Agreement accessible through the Site. Your continued use of the Site and any related services following posting of any changes to this Agreement constitutes your unconditional acceptance and agreement to be bound by the changed terms. You must cease using the Site if you do not agree to be bound by the revised terms and conditions.
General Use and Site License
3. This Site and its related services are intended only for use by those who are 18 years of age or older and of the age of majority in the jurisdiction in which they reside. If you are not 18 or older, and of the age of majority in the jurisdiction in which you reside, you cannot use this Site without the accompaniment and supervision of your parent or legal guardian. If you are a parent or legal guardian, you agree that you will monitor and supervise the use of this Site by children, minors and others under your care, and you agree to be responsible for their use of this Site. Any use of this Site by persons not of the age of majority in the jurisdiction in which they reside and without parental consent can result in immediate termination of your use of this Site and/or any affiliated services.
4. We grant you a limited, nonexclusive and revocable license to make use of the Site and related services, including on any mobile devices you may own. You may view, copy, download or print materials from this Site for your own internal use. In this context, “internal use” does not include posting, uploading or otherwise publishing the materials to any other site absent our express written permission. This license does not include any
rights not specifically enumerated herein. You agree to use this Site only for lawful purposes and in accordance with the terms and conditions contained herein.
5. Without altering the scope of the license, and except as expressly provided for in this Agreement, this license does not include the right (a) to modify, adapt, translate, copy, reproduce, imitate, distribute, publish or resell the Site or any of the content on the Site, including but not limited to the trademarks and copyrights of Fitopia and its affiliates, or to make derivative use of the Site or its contents; (b) to use the Site or any of its contents for commercial solicitation purposes; (c) to bypass any technical measures used to prevent or restrict access to any portion of the Site; (d) to reverse engineer, decompile or disassemble the Site, or to convert into human readable form any of the contents of this Site not intended to be so read, including but not limited to using or directly viewing the underlying code for the Site except as interpreted and displayed in a web browser; (e) to use any data mining, robots, or similar automated data gathering and extraction tools to access the Site; (f) to violate or attempt to violate the security of the Site, (g) to interfere with or attempt to interfere with the proper working of the Site or otherwise engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm Fitopia or users of the Site or expose them to liability; (h) to alter or modify, or attempt to modify, any part of the Site; (i) to attempt to gain unauthorized access to any portion of the Site or any systems or networks connected to the Site through hacking, cracking, mining, phishing or any other means; or (j) to use reports, content, electronic documentation or other materials available on the Site to feed any downstream product, application or website.
6. You agree not to use the Site for any purpose that is unlawful or prohibited by this Agreement or to solicit the performance of any illegal activity, to stalk or harass other users of the Site, or to engage in any other activity which infringes the rights of Fitopia or any other third parties. You agree not to take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or any systems or networks connected to the Site.
7. You acknowledge that your use of this Site is at our sole discretion, and your license to use the site may be terminated by us at any time, for any reason or for no reason. We reserve the right, in our sole discretion, to refuse service, to block or prevent future access to and use of this Site, to terminate any user’s account, and to alter or delete any material submitted to the Site through the user’s account. Following termination of this license, the terms of this Agreement shall still apply to the extent practicable.
Intellectual Property Rights
8. Unless otherwise noted, all content included on this Site, including images, illustrations, designs, icons, photographs, video clips, text and other material, is the property of Fitopia or its suppliers, licensors, talent, partners or affiliates and is protected by United States and International copyright laws. Any and all content on this Site is either the property of Fitopia or is used by us with the permission of its owner. The compilation of this Site is the exclusive property of Fitopia and is protected by United States and
International copyright laws. You agree that you will not take any actions inconsistent with Fitopia’s ownership of the Site and its content.
9. The trademarks, logos, and service marks displayed on this Site are owned by Fitopia and other third parties, and this Site’s trade dress is owned by Fitopia. All trademarks not owned by Fitopia are the property of their respective owners, and, where used by Fitopia, are used with permission. Nothing contained on this Site may be construed as granting, by implication, estoppel, or otherwise, any right or license to use any trademark. Fitopia’s trademarks and/or trade dress may not be copied, imitated or used, in whole or in part (including use in metatags or in hidden text), without our prior written permission. You agree that you will not take any actions inconsistent with Fitopia’s ownership of, or any third party’s ownership of, the trademarks and trade dress used on this Site.
10. Any unauthorized use of any content or materials on this Site is strictly prohibited and may violate copyright and trademark laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.
11. Before you can make use of certain services associated with this Site, you may be required to register with the Site and create a user or employer account. Payment for Site purchases will be processed through the applicable third party payment provider as we may designate from time to time. You acknowledge and agree that we are not responsible for these financial transactions and the security of your financial data with respect to these transactions. You acknowledge and agree that we are not responsible for any unauthorized charges or other breach of your financial information and/or security. You agree and warrant that all information you provide to us through this Site, including but not limited to any contact information and/or registration information for your account, is truthful and accurate. You further agree to maintain the accuracy of your account information and to inform us promptly of any changes to your account information, including but not limited to any changes to your email address.
12. You agree to accept responsibility for all activities that occur under your account. You agree not to disclose your account password to others, and you agree to notify us immediately of any unauthorized use of your account. We are neither responsible for, nor liable, for any loss or other injury that you may incur as a result of someone else using your user account or password, either with or without your knowledge.
13. By creating an account with the Site, you consent to receive communications from us electronically via the email address associated with your account. Although you can opt not to receive promotional messages, we retain the right to send you informational email messages about your account or administrative notices regarding the Site, as permitted under the CAN-SPAM Act (15 U.S.C. §7701 et seq.).
14. You are expressly prohibited from selling, trading, or transferring your account (including but not limited to, selling, trading or transferring emails associated with such account).
Submission of Content and User Activity
15. From time to time, we may make available on this Site certain services, features or sections that allow users to post or upload materials to the Site and/or to our servers. You understand that all information, communications, data, text, software, music, sound, photographs, graphics, videos, messages or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Fitopia, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Site or any associated services.
16. We also provide you services, features, and/or sections that allow users to post or upload links to materials, content, information, communications, data, text, software, music, sound, photographs, graphics, videos, messages, or other materials posted on other websites and domains publicly transmitted (“Non User Content”).
17. You represent and warrant that you own or otherwise control all the rights to any Content that you upload, transmit or otherwise make available through the Site; that use of the Content you provide does not violate the intellectual property rights or any other rights of any third parties, and that use of the Content you provide will not cause injury to any person or entity. In line with, and without limiting, the foregoing, you specifically agree that you will not (a) provide any Content that is unlawful (according to local, state, federal or international law) or any Content that advocates illegal activity; (b) provide any Content that is defamatory, false or libelous, or that contains unlawful, harmful, threatening, harassing, discriminatory, abusive, profane, pornographic or obscene material; (c) provide any Content that you do not have a right to provide under law or under a contractual or fiduciary relationship; (d) provide any Content that contains software viruses or other harmful devices; or (e) impersonate any other person or entity or forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content you provide. You agree that you will indemnify Fitopia or its affiliates for all claims resulting from or related to Content you post or submit.
18. You grant the following license with respect to any and all Content you post or submit to this Site: you hereby expressly grant to Fitopia a royalty-free, perpetual, non-exclusive, irrevocable right and license to use, reproduce, adapt, modify, publish, edit, translate, perform, transmit, sell, exploit, sublicense or otherwise distribute and display the Content and any ideas, concepts, know-how or techniques contained therein for any reason and in any manner it chooses, alone or as a part of other works, in any form, medium or technology now known or later developed, without restriction and without compensation of any kind to you, and you waive all moral rights in all such Content. For informational purposes, we note that the uses to which we may put the information or Content you provide include, but are not limited to, reproduction and use in any and all media whether now known or hereafter devised; publication of the Content or a derivative thereof for promotional, marketing and advertising purposes, and use in the development and manufacture of products.
19. You understand that by using the Site, you may be exposed to Content and Non-User Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Content, including, but not limited to, for any errors or
omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Site.
20. The opinions expressed in postings or other Content or Non-User Content on this Site are not necessarily those of Fitopia or its advertisers, sponsors, affiliated or related entities. We make no representations or warranties regarding any information or opinions posted to or otherwise included on or transmitted through the Site. We do not represent or guarantee the truthfulness, accuracy, or reliability of any Content or Non-User Content or determine whether the Content or Non-User Content violates the rights of others. You acknowledge that any reliance on material posted by other users will be at your own risk.
21. We are not obligated to regularly review, monitor, delete or edit the Content or Non-User Content of the Site as submitted by users. However, we reserve the right to do so at any time in its sole discretion, for any reason or no reason, and to edit or delete any posting or submission, in whole or in part, with or without notice. We are not responsible or liable for damages of any kind arising from any Content or Non-User Content, or from our alteration or deletion of any Content or Non-User Content, even when we are advised of the possibility of such damages.
22. You acknowledge, consent and agree that Fitopia may access, preserve and disclose your account information and any Content you submit if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect the rights, property, or personal safety of Fitopia, its affiliates, personnel, other users and the public.
23. We are not responsible for typographical or other errors or omissions regarding products, services prices or other information provided on this Site. All product and/or service sales and promotions are subject to the terms of this Agreement, in addition to any other terms that may apply. Promotional offers and prices are available for a limited time as specified on the Site. Prices, promotions and availability are subject to change without prior notice.
Links to Third Party Sites
24. This Site may contain links to third-party websites or other resources, which we may have no direct control and all of which may have their own set of rules and guidelines for usage of their sites and services. We have not reviewed the accuracy of the content of any linked third party site. No endorsement of any such linked third party site is made, either express or implied. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and that we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with
use of or reliance on any content, goods or services available on or through any such site or resource. Use of such links is at your own risk.
Disclaimer of Warranties; Indemnification; Resolution of Disputes
25. Fitopia provides this Site and the associated goods and services in connection with one or more affiliated companies and third party agents. Any terms and conditions related to the disclaimer of warranties, your obligation to indemnify Fitopia, and your available remedy in the event of any dispute apply equally with respect to these affiliated companies and agents.
26. THIS SITE, ITS CONTENT, AND ANY ASSOCIATED SERVICES ARE PROVIDED BY FITOPIA ON AN “AS IS” AND “AS AVAILABLE” BASIS. FITOPIA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THIS SITE, TO THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON THIS SITE, OR TO THE FUNCTIONALITY OF ANY SERVICES ASSOCIATED THEREWITH. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, FITOPIA DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OF WORKMANLIKE EFFORT, OF SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF CONTENT, OR OF NON-INFRINGEMENT, AS WELL AS WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OR TRADE. FURTHER, FITOPIA MAKES NO REPRESENTATIONS OR WARRANTIES THAT THIS SITE AND/OR ITS CONTENTS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. FITOPIA IS NOT RESPONSIBLE FOR TYPOGRAPHICAL ERRORS OR OMISSIONS RELATING TO PRICING, TEXT, PHOTOGRAPHY OR ANY OTHER CONTENTS ON THIS SITE. FITOPIA DOES NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE OR THAT THIS SITE AND ITS SERVER ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL GOODS OR COMPUTER CODE THAT MAY BE TRANSFERRED TO YOUR COMPUTER WHEN DOWNLOADED. IF YOUR USE OF THE SITE AND OF THE CONTENT CONTAINED THEREIN RESULTS IN THE NEED FOR SERVICING OR REPLACEMENT OF EQUIPMENT OR DATA, FITOPIA IS NOT RESPONSIBLE FOR THOSE COSTS.
27. BY USING THE SITE, YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE, INCLUDING YOUR USE OF ANY AND ALL ASSOCIATED CONTENT, DATA OR SOFTWARE DISTRIBUTED BY, DOWNLOADED OR ACCESSED FROM OR THROUGH THIS SITE, AND ANY ASSOCIATED SERVICES IS SOLELY AT YOUR OWN RISK. FITOPIA DOES NOT WARRANT OR GUARANTEE THAT ITS SERVICES WILL PROVIDE ANY DESIRED RESULT, THAT ITS SITE, SERVERS OR EMAILS SENT BY OR ON BEHALF OF FITOPIA ARE FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS. FURTHER, FITOPIA DOES NOT GUARANTEE THE CONTINUOUS, UNINTERRUPTED AND ERROR-FREE OPERATION OF ITS SITE, NOR THAT ALL COMMUNICATIONS BETWEEN YOU
AND FITOPIA OR BETWEEN YOU AND ANY OTHER USER OF THE SITE, WILL BE SECURE FROM ACCESS OR INTERFERENCE BY THIRD PARTIES.
28. FITOPIA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM OR OTHERWISE RELATED TO YOUR USE OF OR INABILITY TO USE THIS SITE OR THE ASSOCIATED SERVICES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, EVEN IF FITOPIA HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, FITOPIA WILL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESSING OR USE OF THIS SITE, OR FROM YOUR DOWNLOADING OF ANY MATERIALS FROM THIS SITE, OR FOR ANY DAMAGES ARISING OUT OF A THIRD PARTY’S UNAUTHORIZED ACCESS TO AND USE OF YOUR PERSONAL INFORMATION STORED ON FITOPIA’S COMPUTERS AND/OR SERVERS. FITOPIA WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT YOU ALLEGE ARISE OUT OF OR ARE RELATED TO YOUR USE OF FITOPIA’S SERVICES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FITOPIA OR ITS AFFILIATES — WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY — ARISING OUT OF OR RELATING TO THE USE OF THIS SITE EXCEED THE TOTAL AMOUNT YOU PAID TO FITOPIA TO ACCESS ITS SERVICES AND/OR SITE WITHIN THE PRECEDING THREE MONTHS.
29. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
30. You agree to indemnify, defend and hold harmless Fitopia, its subsidiaries, agents, distributors and affiliates, and their officers, directors and employees, from and against any claim, demand, damages, cost and expenses, including reasonable attorney fees, arising from or related to your use of this Site and the services provided in connection with the Site, or your breach of any provision of this Agreement or any warranty provided hereunder.
31. You agree that if you are dissatisfied with the Site or any services offered in connection with the Site, if you do not agree with any part of this Agreement, or you have any other dispute or claim with or against Fitopia with respect to this Agreement or the Site, your sole and exclusive remedy is to discontinue using the Site and any services offered in connection with the Site.
32. This Site is created and maintained by Fitopia in the State of Ohio. You agree that the laws of the State of Ohio, without giving effect to any principles of conflicts of laws, will govern this Agreement and any dispute of any sort that may arise between you and Fitopia or its affiliates.
33. Regardless of where you access this Site, you agree that any action or proceeding arising out of this Agreement or your use of the Site and/or services, whether at law or in equity, must be brought in the state or federal courts located in Butler County, Ohio and you hereby irrevocably and unconditionally consent to the exclusive personal jurisdiction of such courts.
34. You further agree to file any cause of action with respect to this Agreement within one year after the cause of action arises. You agree that a cause of action filed after this date is barred.
35. This Agreement represents the entire understanding between the parties regarding your use of the site, and supersedes all other agreements, express or implied, between them. This Agreement shall not be modified except as provided for herein or except in writing, signed by an authorized representative of Fitopia. If any provision of this Agreement is determined to be invalid or unenforceable for any reason whatsoever, the remainder of this Agreement shall be enforced to the extent possible, and the offending provision shall be treated as though not a part of this Agreement. Fitopia’s failure to act with respect to a breach of this Agreement by you or others does not constitute a waiver of its rights with respect to that breach or any subsequent breach, nor shall it constitute a waiver of any other rights under this Agreement.
36. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
37. Any rights not expressly granted herein are reserved.
If you have any questions or suggestions regarding these terms and conditions, please contact us at:
7604 Cox Lane
West Chester, OH 45069