TERMS AND CONDITIONS OF USE
Last updated: 11/22/18
These Website Terms and Conditions of Use (the “Terms of Use”) apply to the Fitness Depot website located at www.fdgyms.com, and all associated Fitness Depot sites of our subsidiaries and affiliates (collectively, the “Site”). The Site is the property of Fitness Depot Gyms, Inc, a Mississippi Incorporated Company (“Fitness Depot”). Please read these Terms of Use carefully.
BY ACCESSING THIS SITE, YOU ACCEPT, WITHOUT LIMITATION OR QUALIFICATION, THESE TERMS OF USE, WHICH FORM A LEGALLY BINDING AGREEMENT. PLEASE NOTE THESE TERMS CONTAIN DISCLAIMERS AND LIMITATIONS OF LIABILITY, AS WELL AS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER FOR US RESIDENTS. IF YOU DO NOT AGREE WITH THESE TERMS OF USE , PLEASE DO NOT USE THE SITE.
The Site is intended to be used solely by individuals over the age of 18.
OWNERSHIP OF CONTENT
Unless otherwise indicated, this Site and its design, text, content, selection and arrangement of elements, organization, graphics, and the design, compilation, and other matters related to this Site (collectively, "Content") are protected under applicable intellectual property and other laws, including, without limitation, those of the United States and Canada. All Content and intellectual property rights herein are the property of Fitness Depot or the material is included with the permission of the rights owner and is protected pursuant to applicable copyright and trademark laws. The posting of any Content on this Site does not constitute a waiver of any right in such Content. The reproduction, duplication, distribution (including by way of email or other electronic means), publication (including posting on another website) modification, copying or transmission of Content from this Site in any form or by any means is strictly prohibited without the express prior written consent of Fitness Depot. Requests for permission to reproduce or distribute materials found on this Site can be made by contacting Fitness Depot in writing at 121 West Ivy Street, Ellisville, MS 39437 or by email at customerservice@fitnessdepotgyms.com. The Content may only be used for personal, non-commercial purposes.
Fitness Depot grants you a personal, limited, non-exclusive, non-transferable license to access, view and make personal and non-commercial use of this Site. You may not use this Site to gain unauthorized access to Fitness Depot networks or computer systems or to engage in any activity that disrupts or otherwise interferes or tampers with the Site (and associated servers or networks connected to the Site). You agree not to access the Site through any automated means (such as through the use of scripts or web crawlers, etc.).
TRADEMARKS
Fitness Depot logo and all page headers, custom graphics, button icons, trademarks, service marks and logos appearing on this Site, unless otherwise noted, are service marks, trademarks (whether registered or not) and/or trade dress of Fitness Depot (the "Marks"). You are not authorized to display or use the Marks in any manner without the express prior written consent of Fitness Depot. The use or misuse of the Marks or other trademarks, names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited. All other product and company names and trademarks mentioned, displayed, cited or otherwise indicated on the Site are the property of their respective owners.
PRIVACY POLICY
By agreeing to these Terms of Use, you agree to the terms of our Privacy Policy, which is located at www.fdgyms.com/privacy and is incorporated herein by reference. Before using this Site, please read through the Terms of Use and Privacy Policy carefully. All personal information provided to us as a result of your use of this Site will be handled in accordance with our Privacy Policy.
ADDITIONAL TERMS, CONDITIONS AND AGREEMENTS
We may require you to follow additional rules, guidelines or other terms and conditions in order to use various features of our Site, to participate in certain promotions or activities available through our Site, or for other reasons. In such cases, you may be asked to expressly consent to these additional terms and conditions, for example, by checking a box or clicking on a button marked "I agree." This type of agreement is known as a "click-through" agreement. For example, you will be required to enter into a separate agreement if you use this Site (or any other site associated with Fitness Depot) to join one of our clubs, apply to become a franchisor of one of our clubs, enter a sweepstakes or make a purchase. If any of the terms or conditions of a click-through agreement are different than the terms of these Terms of Use, then the terms of the click-through agreement will supplement or amend these Terms of Use, but only with respect to the matters governed by such agreement. In addition, certain areas of our Site (such as our online store) may be operated by third party service providers. Such areas may be governed by certain additional terms, conditions, or policies of those third party providers.
SITE SUBMISSIONS
You may choose to submit information to Fitness Depot through our Site for various reasons, such as to become a Fitness Depot member, make a purchase, apply to become a franchisee or apply for Fitness Depot employment opportunities. By submitting information to Fitness Depot, you are authorizing us to utilize this information for the purpose for which it was submitted and for such other purposes as set out in our Privacy Policy. Nothing in these Terms of Use or the Site shall constitute an offer or promise of employment or franchising relationship. We may or may not review all or any information submitted to us.
Except for personally identifiable information such as names, addresses, and financial information, unsolicited information and content submitted to this Site is assigned to Fitness Depot free of charge, together with all worldwide rights, title and interest in all copyrights and other intellectual property rights in such submission and Fitness Depot and its affiliates and related entities may use, sublicense, adapt, distribute, publicly perform, publish, display or delete such submission at its sole discretion. By sending any unsolicited submission to Fitness Depot, you waive the right to make any claim against Fitness Depot, its parents or affiliates related to use of the submission.
By uploading or submitting any content you represent and warrant that any uploaded material does not: infringe any copyright or other intellectual property or other rights of any other person; contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our Privacy Policy; promote any illegal activity, or advocate, promote, or assist any unlawful act; involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising; give the impression that the content emanates from or is endorsed by Fitness Depot or any other person or entity, if this is not the case. Fitness Depot reserves the right to remove any content that it deems, in its sole discretion, to violate these terms.
YOU UNDERSTAND THAT WHEN USING THE SITE YOU MAY BE EXPOSED TO THIRD PARTY CONTENT FOR WHICH FITNESS DEPOT IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, OR INTELLECTUAL PROPERTY RIGHTS RELATING THERETO, AND ACCORDINGLY WAIVE ANY AND ALL CLAIMS, RIGHTS, OR REMEDIES AGAINST FITNESS DEPOT WITH RESPECT TO SUCH THIRD PARTY CONTENT, EXCEPT AS PROVIDED HEREIN FOR COPYRIGHT INFRINGEMENT NOTICES. FITNESS DEPOT DOES NOT PROACTIVELY SCREEN, MONITOR, OR CONTROL USER UPLOADED CONTENT AND THUS DOES NOT ENDORSE ANY CONTENT OR OPINION EXPRESSED IN ANY CONTENT. FITNESS DEPOT EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY IN CONNECTION WITH ANY SUCH THIRD PARTY CONTENT. AS SET FORTH IN OTHER PROVISIONS OF THIS AGREEMENT, FITNESS DEPOT MAY INVESTIGATE ANY REPORTED HOSTED CONTENT IN VIOLATION OF THESE TERMS OF USE OR ANY LAWS OR REGULATIONS, AND MAY DETERMINE IN ITS SOLE DISCRETION WHETHER TO REMOVE SUCH CONTENT.ADVERTISING AND LINKS
With our prior written consent, you may create hyperlinks directly to the home page of this Site, or the home page of any of our clubs within this Site, provided that: (i) the hyperlink accurately describes the content as it appears on the Site; (ii) each page within our Site is displayed in full, without any accompanying frame, border, margin, design, branding, trademark, advertising or promotional materials not originally displayed on the applicable page within our Site; and (iii) you do not represent in any way, expressly or by implication, that you have received the endorsement, sponsorship or support of this Site, Fitness Depot, or its agents. You may not copy any portion of the Site or Content to a server, except as part of an incidental caching of pages. If you wish to link to or obtain a license with regard to the Site or the Content other than as described herein, you must contact Fitness Depot by email at customerservice@fitnessdepotgyms.com or 121 West Ivy Street, Ellisville, MS 39437 before doing so. If Fitness Depot has provided links or pointers to other websites, then no inference or assumption should be made and no representation should be implied that Fitness Depot is connected with, operates or controls these websites. Fitness Depot is not responsible for the content or practices of third party websites that may be linked to this Site. This Site may also be linked to other web sites operated by companies affiliated or connected with Fitness Depot. When visiting other websites, however, you are subject to and should review each website’s individual terms of use and privacy policy. Fitness Depot takes no responsibility for third party advertisements which are posted on this Site, nor does it take any responsibility for the goods or services provided by such advertisers.
TERMINATION
Fitness Depot reserves the right to immediately terminate your use of, or access to, this Site at any time for any reason in its sole discretion. Fitness Depot further reserves the right to modify or discontinue this Site or any portion thereof at any time without notice.
COPYRIGHT INFRINGEMENT
If you believe that any material contained in this Site infringes your copyright, you should notify Fitness Depot of your copyright infringement claim in accordance with the following procedure. Fitness Depot will process notices of alleged infringement which it receives and will take appropriate action pursuant to the U.S. Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. The DMCA requires that notifications of claimed copyright infringement should be sent to Fitness Depot by mail at 121 West Ivy Street, Ellisville, MS 39437, Attention: General Counsel, or by e-mail to customerservice@fitnessdepotgyms.com. To be effective, the notification must be in writing and contain the following information (DMCA, 17 U.S.C. 512(c)(3)): (i) physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work(s) claimed to have been infringed; (iii) identification of the material that is claimed to be infringing and the location of such material on our Site; (iv) information to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address; (v) 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; (vi) 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. If you are a user outside the United Sates and are not subject to the DMCA, you should notify Fitness Depot of your copyright infringement claim in writing and in accordance with the above procedure and other applicable intellectual property laws including, but not limited to, the Canadian Copyright Act.
DISCLAIMER OF WARRANTIES
TO THE FULLEST EXTENT PERMITTED BY LAW, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIS SITE OR ITS CONTENTS, OR ANY SITE WITH WHICH IT IS LINKED, WHICH ARE EACH PROVIDED FOR USE "AS IS" AND ON AN "AS AVAILABLE" BASIS. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS SITE, ITS CONTENTS, AND ANY SITE WITH WHICH THIS SITE MAY BE LINKED. WE DO NOT WARRANT THAT THIS SITE, ITS SERVERS OR E-MAIL SENT FROM US WILL BE FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES). WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES AS TO WHETHER THE INFORMATION ACCESSIBLE VIA THIS SITE, OR ANY SITE WITH WHICH IT IS LINKED, IS ACCURATE, COMPLETE, OR CURRENT. WE DO NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. YOU ACCEPT THAT OUR PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AND SUPPLIERS SHALL HAVE THE BENEFIT OF THIS CLAUSE.
EXCLUSION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, WE, ON BEHALF OF OUR PARENT, AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, AND SUPPLIERS, EXCLUDE AND DISCLAIM LIABILITY FOR ANY LOSSES AND EXPENSES OF WHATEVER NATURE AND HOWSOEVER ARISING INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF USE, LOSS OF DATA, LOSS CAUSED BY A VIRUS, LOSS OF INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, CLAIMS OF THIRD PARTIES, OR OTHER LOSSES OF ANY KIND OR CHARACTER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SITE OR ANY CONTENT PROVIDED ON THE SITE. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, EQUITY, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS. THE FOREGOING SHALL NOT PRECLUDE RECOVERY OF DAMAGES FOR PERSONAL INJURY, LOSS OR DAMAGE TO PERSONAL PROPERTY, OR UNAUTHORIZED USE OR DISCLOSURE OF PERSONALLY IDENTIFIABLE INFORMATION CAUSED BY FITNESS DEPOT’S GROSS NEGLIGENCE, RECKLESSNESS, FRAUD OR OTHER WILLFUL, UNCONSCIONABLE OR INTENTIONAL MISCONDUCT. NOTHING HEREIN SHALL BE CONSTRUED TO LIMIT THE CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER TO RECOVER ATTORNEYS’ FEES OR OTHER REMEDIES AFFORDED BY STATUTE OR OTHER LAW.
INDEMNITY
To the fullest extent permitted by law, you agree to defend, indemnify and hold harmless Fitness Depot, its parents subsidiaries and affiliates together with their respective directors, officers, managers, members, employees and agents, from and against all liabilities, claims, damages and expenses (including reasonable attorney’s fees and costs) incurred or alleged by any third party arising out of or related to your use of this Site, any content you submit, post to, or transmit through this Site or your breach or alleged breach of these Terms of Use.
LEGAL COMPLIANCE
You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Site. If you provide us any information through the Site, you agree to provide true, accurate, current and complete information about yourself. You agree not to attempt to upload or transmit through the Site any computer viruses, trojan horses, worms or anything else designed to interfere with, interrupt or disrupt the normal operating procedures of a computer or system. Any unauthorized modification, tampering or change of any information, or any interference with the availability of or access to this Site is strictly prohibited. If you become aware of misuse of this Site by any person, then please contact the Site Administrator at customerservice@fitnessdepotgyms.com with your concerns. Fitness Depot reserves all rights and remedies available to it.
GENERAL PROVISIONS
These Terms of Use operate to the fullest extent permissible by law. If any provision of these Terms of Use is unlawful, void or unenforceable, that provision is deemed severable from these Terms of Use, will be substituted with a valid and enforceable provision reflecting the intent of the invalid provision, and does not affect the validity and enforceability of any remaining provisions. No provision of these Terms of Use shall be waived except with prior written consent of Fitness Depot. The failure to exercise, or delay in exercising, any right or remedy under these Terms of Use will not operate as a waiver. These Terms of Use may be assigned by Fitness Depot in our sole discretion. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Failure to act with respect to a breach of this agreement does not waive our right to act with respect to subsequent or similar breaches. These Terms of Use set forth the entire understanding and agreement between us with respect to the subject matter hereof.
MODIFICATION
Fitness Depot reserves the right to modify or amend these Terms of Use without notice at any time. The latest Terms of Use will be posted on the Site, and you should always review these Terms of Use prior to using the Site to ensure that you have a current understanding of the Terms of Use under which you are permitted to access this Site. If we make material changes to this policy, we will notify you by means of a conspicuous notice on our homepage or direct communication to you via email or your account. Use by you of the Site following any modifications or amendments to these Terms of Use shall signify your acceptance of such modifications or amendments.
NOTICES
Except as explicitly stated otherwise, any notices shall be given by postal mail to Fitness Depot Attn: Legal Department, 121 West Ivy Street, Ellisville, MS 39437 (in the case of notice to Fitness Depot) or to the email address you provide to Fitness Depot (in the case of notice to you). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address you have provided to Fitness Depot. In such case, notice shall be deemed given 3 days after the date of mailing.
CONTACTING FITNESS DEPOT
Any questions, comments, or issue with this Site should be addressed to the Site Administrator at customerservice@fitnessdepotgyms.com. The website www.fdgyms.com is operated by Fitness Depot Gyms, Inc.
GOVERNING LAW, VENUE AND DISPUTE RESOLUTION
This Agreement is governed by, and construed in accordance with U.S. Federal laws and the laws of the State of Mississippi, without giving effect to any principles of conflicts of law. For any claims not subject to mandatory arbitration pursuant to this agreement, you agree to submit to the exclusive jurisdiction of the courts of the State of Mississippi or, if appropriate, the United States District Court for the State of Mississippi for resolution of any dispute, action or proceeding arising in connection with this Agreement or your use of the Site, and you further irrevocably waive any right you may have to trial by jury in any such dispute, action or proceeding.
DISPUTE RESOLUTION
Disputes Involving U.S. Users. – Mandatory Arbitration
If you are a user based in the United States, in the event of any dispute, controversy, or claim arising out of or relating to these Terms of Use, the Site, or your use thereof, the parties shall first attempt, promptly and in good faith, to resolve any such dispute informally between them. If the parties are unable to resolve any such dispute within a reasonable time (not to exceed thirty (30) days), YOU AGREE THAT THE DISPUTE SHALL, UNLESS OTHERWISE MUTUALLY AGREED BY THE PARTIES FOR ANY PARTICULAR DISPUTE, BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION, PURSUANT TO THE THEN-CURRENT CONSUMER ARBITRATION RULES. ANY ARBITRATION COMMENCED BETWEEN YOU AND THE FITNESS DEPOT PARTIES MUST BE ARBITRATED IN MISSISSIPPI. ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR THE FITNESS DEPOT PARTIES MAY JOIN CLAIMS IN ARBITRATION WITH OR AGAINST OTHER USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS. YOU UNDERSTAND THAT BY AGREEING TO ARBITRATION YOU ARE WAIVING CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE IN COURT, THE RIGHT TO HAVE THE DISPUTE DECIDED BY A JUDGE OR JURY, AND THE RIGHT TO BRING, OR BE PART OF, A CLASS ACTION CASE. The foregoing shall not apply to suits falling within the jurisdiction of the small claims courts located in the State of Mississippi or to enjoin infringement or other misuse of intellectual property rights, and you or the Fitness Depot Parties may bring suit in court for (a) individual small claims matters and (b) to enjoin infringement or other misuse of intellectual property rights.
RULES FOR THE AMERICAN ARBITRATION ASSOCIATION ARE AVAILABLE AT: https://www.adr.org.