The eFitness Pal website, related mobile applications and services (collectively, the “Services”) are made available to you by eFitness Pal, subject to these Terms of Service (the “Terms”) and in accordance with the eFitness Pal Privacy Policy (the “Privacy Policy”). More information about the Services may be found at https://efitnesspal.com. You agree to comply with these Terms and any supplemental terms which eFitness Pal makes available to you on the Services which shall form part of the Terms. BY ACCESSING ANY INFORMATION OR MATERIALS TO OR FROM THE SERVICES, OR BY INDICATING YOUR ASSENT TO THESE TERMS BY CREATING AN ACCOUNT, CLICKING “SIGN UP” OR ANY SIMILAR MECHANISM, YOU ARE AGREEING TO THE THESE TERMS. IF YOU DO NOT AGREE TO THE THESE TERMS, DO NOT ACCESS OR USE THE SERVICES. This agreement was written in English. To the extent a translated version of the Terms conflict with the English version, the English version controls.
If you access or use the Services on behalf of a company or other entity, you represent that you have authority to bind such entity and its affiliates to these Terms and that it is fully binding on them. In such case, the term “you” will refer to such entity and its affiliates. If you do not have authority, you may not access or use the Services. These Terms contain disclaimers of warranties and limitations on liability that may be applicable to you.
The eFitness Pal Services cannot be provided and the agreement described in these Terms of Service cannot be performed without eFitness Pal processing data about you, and other eFitness Pal members, including your location data. Processing of the data you share with eFitness Pal, including location data, is essential to the Services which we provide and a necessary part of our performance of the agreement we have with you.
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how disputes between you and eFitness Pal are resolved, including an agreement to arbitrate, which will, unless you reside in the European Union, with limited exception, require you to submit claims you have against us to binding and final arbitration and limit you to claims against eFitness Pal on an individual basis, unless you opt-out in accordance with the instructions below.
The Services are intended solely for persons who are 13 years old or such higher age required in your country to use the Services. If you are under the legal age to form a binding contract in your jurisdiction, you represent that your parent or legal guardian has reviewed and agreed to these Terms on your behalf. To use the Services, you must register. You agree to: (a) provide true, accurate, current and complete information about yourself (“Member Data”) and (b) maintain and promptly update the Member Data. You agree that eFitness Pal may use your Member Data to provide Services that you access or use and as otherwise set forth in these Terms. If you provide any Member Data that is inaccurate or not current, or eFitness Pal has reasonable grounds to suspect that such Member Data is inaccurate or not current, eFitness Pal has the right to suspend or terminate your account and refuse current or future use of the Services. In consideration of your use of the Services, you represent that you are not a person barred from receiving services under the laws of any applicable jurisdiction. You are solely responsible for maintaining the confidentiality of the password associated with your account and for restricting access to your password, your computer and mobile device while logged into the Services. You accept responsibility for all activities that occur under your account or from your computer and mobile devices. We endeavor to use reasonable security measures to protect against unauthorized access to your account. We cannot, however, guarantee absolute security of your account, your Content (as defined below) or the personal information you provide, and we cannot promise that our security measures will prevent third-party “hackers” from illegally accessing the Services or its contents. You agree to immediately notify eFitness Pal of any unauthorized use of your account or password, or any other breach of security, and confirm that you understand all risks of unauthorized access to Member Data and any other information or content you provide to eFitness Pal. NOTE: This special offer sends you a full thirty (30) day trial (“Trial”) of the eFitness Pal workout program. You just have to pay $1.99 for Processing. eFitness Pal will be delivered via email and the Trial period will begin immediately upon receipt. If You have any questions about your Trial Order, please contact Customer Service toll-free at 833-EFITPAL. Our Customer Service Department is open from 9AM - 9PM EST. A. Trial Policy: Our Trial policy requires you to understand certain important dates. The policy, and the important dates for you to know, are as follows: B. Beginning on the day that you place an order for eFitness Pal ("Service") from the Website, your thirteen (30) day Trial period begins ("Trial Period"). The Trial Period is calculated in calendar days, not business days and the thirty (30) day Trial ends on day thirty (30). C. You will be given a thirty (30) days to review the Service you ordered. If you want to extend your Trial Period due to slow or delayed delivery, you must call Our Customer Service Department toll-free at 833-EFITPAL. Reasonable requests (as determined by eFitness Pal) to extend your Trial Period generally will be granted. D. If you are satisfied with the Service and wish to continue to receive the Service on a monthly basis, you need do nothing else. Upon the expiration of the Trial Period, on Day 31, Your credit card will be billed for the full cost of the Service that you ordered at the rate of $14.99. E. Unless you cancel this Service, every thirty (30) days thereafter eFitness Pal will renew your subscription for an additional thirty (30) days of the Service you ordered, and the credit card You provided to us will be automatically billed for the cost of the Service at $14.99. F. Lifetime Memberships: If you are satisfied with the Service and wish to continue at the Lifetime membership rate, you need do nothing else. Upon the expiration of the Trial Period, on Day 31, Your credit card will be billed for the Lifetime cost of the Service that you ordered at the rate of $99.99. *Remove Trial info from Lifetime *Add Month-Month option @$9.99 G. If you are not satisfied with the Service and wish to cancel future use of the Service, You must contact Our Customer Service Department at 833-EFITPAL prior to the expiration of the Trial Period (before Day 31) and cancel your order. We retain a total guarantee of customer satisfaction on our products. If you are unhappy with the Service for any reason, please call customer service at 833-EFITPAL before the end of the trial. NOTE: You understand that this consumer transaction involves a trial option and that you will be liable for payment of Service that was made available to you, and future use of the Service, if you fail to notify us to stop supplying the Service to you. If you wish to cancel future use of the Service and you are within the Trial Period, then you should follow the procedures described in the preceding section of this Agreement. If you wish to cancel future use of Service outside of the Trial Period, then you must call Our Customer Service Department toll-free at 833-EFITPAL and request that such future use be terminated. Your request for termination will be processed immediately. We strive to provide exceptional customer service, so if you are ever not satisfied with any Service that you ordered, please call Our Customer Service Department toll-free at 833-EFITPAL and request a refund. Most stipulations to our refund policy are as follows: (i) Customers are restricted to receiving a single refund per Service ordered. Repetitive refunds are not permitted unless the Service, as delivered to you, is defective. eFitness Pal reserves the right to refuse a refund to any customer who repeatedly requests refunds or who, in eFitness Pals judgment, requests refunds in bad faith. (ii) In order to process your refund, you must supply eFitness Pal with your name and address. If you provide us with insufficient or incorrect information, your refund will be delayed or not issued at all. (iii) Depending on the bank that issues the credit card provided, your refund can take up to 5-7 business days to appear back on your credit card account. If you have any questions about whether a refund has been issued by eFitness Pal, please call our Customer Service Department toll-free at 833-EFITPAL. K. By ordering Products from this Website, you authorize eFitness Pal to charge your credit card accordingly. This authority shall remain in effect until and unless you have cancelled future orders of the Services as described in this Agreement. If you have any questions about the Credit Card Descriptor on your credit card statement, please call Our Customer Service Department toll-free at 833-EFITPAL. L. We reserve the right to modify the prices charged for the Services, or to add or remove any Services, from the Website at any time without prior notice to you. Price quotes provided to you prior to any price modification shall be honored. M. If you believe that You have been erroneously billed, please notify Our Customer Service Department toll-free at 833-EFITPAL immediately of such error. If we do not hear from you within thirty (30) days after such billing error first appears on any account statement, such fee will be deemed acceptable by you for all purposes, including resolution of inquiries made by your credit card issuer. You release us from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to us within thirty (30) days of its publication. The cancellation of a membership will go into effect at the end of your current billing cycle. When your membership ends you will no longer have access to the eFitness Pal platform and it's services. You can also delete your account by contacting Our Customer Service Department toll-free at 833-EFITPAL to assist with. Under no circumstances will eFitness Pal be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content made available on the Services. You agree to bear all risks associated with the use of any Content available in connection with the Services, including any reliance on the accuracy, completeness, or usefulness of such Content. The Services are for your personal and noncommercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell for any commercial purposes any portion of the Services, use of the Services or access to Content. You may not use the Services, or assist or encourage any other party, to engage in any of the following Prohibited Activities: Third party products and services made available on the Services are made and offered directly by the applicable third party. When you pursue or purchase any such product or service, you acknowledge that you are contracting directly with such third party and not with eFitness Pal. Your interaction with, or participation in promotions of, third parties found on or through the Services, including payment and delivery of goods or services, and any other terms, are solely between you and such third party. You are not obligated to use or transact business with any third party that appears on the Services. YOU AGREE THAT EFITNESS PAL SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU AS THE RESULT OF ANY OF YOUR DEALINGS WITH THIRD PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES. eFitness Pal or third parties may provide links to other internet sites or resources through the Services. eFitness Pal does not endorse and is not responsible or liable for any content, information, advertising, products or other materials on or available from such sites or resources. You acknowledge and agree that eFitness Pal is not responsible for the availability of such external sites or resources. You acknowledge and agree that the Services, any necessary software used in connection with the Services (if any), any aggregated data based on Content on the Services, and any Content available or made available on the Services contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly permitted by applicable law or authorized by eFitness Pal or applicable third party service providers or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, the software or Content available on the Services (other than Content that you may submit), in whole or in part. eFitness Pal grants you a personal, revocable, non-transferable, non-sublicensable and non-exclusive right and license to access and use the Services; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Services, except where permitted by law. You agree not to access the Services by any means other than through the interfaces that are provided by eFitness Pal. The term EFITNESS PAL, the eFitness Pal logo and other eFitness Pal logos and product and service names are the exclusive trademarks of, and are owned by, eFitness Pal, Inc., and you may not use or display such trademarks in any manner without eFitness Pal's prior written permission. Any third party trademarks or service marks displayed on the Services are the property of their respective owners. eFitness Pal reserves all rights not expressly granted hereunder. The Digital Millennium Copyright Act (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under U.S. copyright law. eFitness Pal also reviews claims of trademark infringement. If you believe in good faith that materials hosted by eFitness Pal infringe your copyright or trademark rights, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. The notice must include the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) identification of the copyrighted work or trademark claimed to have been infringed (or, if multiple copyrighted works or trademarks located on the Services are covered by a single notification, a representative list of such works); (c) identification of the material that is claimed to be infringing or the subject of infringing activity, and information reasonably sufficient to allow eFitness Pal to locate the material on the Services; (d) the name, address, telephone number, and e-mail address (if available) of the complaining party; (e) a statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright or trademark owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Please be advised that eFitness Pal will not respond to complaints that do not meet these requirements. If eFitness Pal determines that the materials alleged to infringe your copyright or trademark rights do not require removal, eFitness Pal will remove those materials only pursuant to a court order declaring the content or use of the materials unlawful. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Counter-notices must include the following information: (a) your name, address, and telephone number; (b) the source of the content that was removed; (c) a statement under penalty of perjury that you have a good-faith belief that the content was removed in error; (d) a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located; or, if your address is outside of the United States, for any judicial district in which eFitness Pal may be found, and that you will accept service of process from the person who provided the original complaint; and (e) a physical or electronic signature (for example, typing your full name). Notices and counter-notices with respect to the Services must meet the then-current statutory requirements imposed by the DMCA (see https://copyright.gov/title17/92appb.html) and should be sent to the agent identified below. We suggest that you consult your legal advisor before filing a notice or counter-notice. Also, be aware that there may be penalties for false claims under the DMCA. Agent to Receive Notices of Claimed Infringement: eFitness Pal Copyright Agent 1483 Lost Creek Rd. Thayne, WY 83127 support@efitnesspal.com We welcome your comments, feedback, suggestions, and other communications regarding the Services and the information and services we make available through the Services (collectively, “Feedback”). If you provide Feedback, you hereby grant to eFitness Pal a worldwide, non-exclusive, transferable, assignable, sub-licensable, perpetual, irrevocable, royalty-free license to copy, distribute, create derivative works of, publicly display and perform and otherwise exploit such Feedback and to use, make, have made, sell, offer for sale, import and export products and services based on such Feedback. For this reason, we ask that you not send eFitness Pal any Feedback that you do not wish to license to us as set forth above. THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT AVAILABLE THROUGH THE SERVICES ARE PROVIDED TO YOU “AS IS” AND WITHOUT WARRANTY. EFITNESS PAL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS HEREBY DISCLAIM ALL WARRANTIES WITH REGARD TO SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND CONTENT, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. EFITNESSPAL AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS MAKE NO WARRANTY THAT: (a) THE SERVICE WILL MEET YOUR REQUIREMENTS; (b) YOUR CONTENT WILL BE AVAILABLE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (e) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. YOU EXPRESSLY AGREE THAT EFITNESS PAL IS NOT PROVIDING MEDICAL ADVICE VIA THE SERVICES. THE CONTENT PROVIDED THROUGH THE SERVICES, INCLUDING ALL TEXT, PHOTOGRAPHS, IMAGES, ILLUSTRATIONS, GRAPHICS, AUDIO, VIDEO AND AUDIO-VIDEO CLIPS, AND OTHER MATERIALS, WHETHER PROVIDED BY US OR BY OTHER ACCOUNT HOLDERS OR THIRD PARTIES IS NOT INTENDED TO BE AND SHOULD NOT BE USED IN PLACE OF (a) THE ADVICE OF YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, (b) A VISIT, CALL OR CONSULTATION WITH YOUR PHYSICIAN OR OTHER MEDICAL PROFESSIONALS, OR (c) INFORMATION CONTAINED ON OR IN ANY PRODUCT PACKAGING OR LABEL. SHOULD YOU HAVE ANY HEALTH RELATED QUESTIONS, PLEASE CALL OR SEE YOUR PHYSICIAN OR OTHER HEALTHCARE PROVIDER PROMPTLY. SHOULD YOU HAVE AN EMERGENCY, CALL YOUR PHYSICIAN OR 911 IMMEDIATELY. YOU SHOULD NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING MEDICAL ADVICE BECAUSE OF ANY CONTENT PRESENTED ON THE SERVICES, AND YOU SHOULD NOT USE THE SERVICES OR ANY CONTENT ON THE SERVICES FOR DIAGNOSING OR TREATING A HEALTH PROBLEM. THE TRANSMISSION AND RECEIPT OF OUR CONTENT, IN WHOLE OR IN PART, OR COMMUNICATION VIA THE INTERNET, E-MAIL OR OTHER MEANS DOES NOT CONSTITUTE OR CREATE A DOCTOR-PATIENT, THERAPIST-PATIENT OR OTHER HEALTHCARE PROFESSIONAL RELATIONSHIP BETWEEN YOU AND EFITNESSPAL. YOU EXPRESSLY AGREE THAT YOUR ATHLETIC ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, CYCLING, RUNNING, OR FOLLOWING AN EFITNESS PAL TRAINING PLAN OFFERED ON THE SERVICES) CARRY CERTAIN INHERENT AND SIGNIFICANT RISKS OF PROPERTY DAMAGE, BODILY INJURY OR DEATH AND THAT YOU VOLUNTARILY ASSUME ALL KNOWN AND UNKNOWN RISKS ASSOCIATED WITH THESE ACTIVITIES EVEN IF CAUSED IN WHOLE OR PART BY THE ACTION, INACTION OR NEGLIGENCE OF EFITNESS PAL OR BY THE ACTION, INACTION OR NEGLIGENCE OF OTHERS. YOU EXPRESSLY AGREE THAT EFITNESS PAL DOES NOT ASSUME RESPONSIBILITY FOR THE INSPECTION, SUPERVISION, PREPARATION, OR CONDUCT OF ANY RACE, CONTEST, CHALLENGE, OR GROUP ACTIVITY THAT UTILIZES THE SERVICES, INCLUDING ANY THAT ARE ORGANIZED BY A CLUB ADMINISTRATOR. YOU EXPRESSLY AGREE TO RELEASE EFITNESS PAL, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, REPRESENTATIVES, EMPLOYEES, PARTNERS AND LICENSORS (THE “RELEASED PARTIES”) FROM ANY AND ALL LIABILITY IN CONNECTION WITH YOUR ATHLETIC ACTIVITIES AND/OR USE OF THE EFITNESS PAL WEBSITES, MOBILE APPLICATIONS, CONTENT, SERVICES OR PRODUCTS (INCLUDING, WITHOUT LIMITATION, ANY EFITNESS PAL TRAINING PLAN), AND PROMISE NOT TO SUE THE RELEASED PARTIES FOR ANY CLAIMS, ACTIONS, INJURIES, DAMAGES, OR LOSSES ASSOCIATED WITH SUCH USE. YOU ALSO AGREE THAT IN NO EVENT SHALL THE RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (a) YOUR USE OR MISUSE OF THE SERVICES, (b) YOUR USE OR MISUSE OF EQUIPMENT OR PROGRAMS CREATED OR LICENSED BY EFITNESS PAL (INCLUDING, WITHOUT LIMITATION, ANY EFITNESS PAL TRAINING PLAN) WHILE ENGAGED IN ATHLETIC ACTIVITIES, (c) YOUR DEALINGS WITH THIRD-PARTY SERVICE PROVIDERS OR ADVERTISERS AVAILABLE THROUGH THE SERVICES, (d) ANY DELAY OR INABILITY TO USE THE SERVICES EXPERIENCED BY YOU, OR (e) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF EFITNESS PAL HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS OF LIABILITY ABOVE, SUCH AS EXCLUSIONS FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN ENTERING INTO THIS RELEASE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE THE BENEFITS OF, SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, (AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY), WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” EFITNESS PAL DOES NOT ENDORSE YOUR CONTENT OR ANY OTHER MEMBER’S CONTENT AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT ON THE SERVICES. THE COMPANY’S MAXIMUM AGGREGATE LIABILITY TO YOU PURSUANT TO THESE TERMS SHALL NOT EXCEED THE GREATER OF EITHER (a) FIFTY DOLLARS ($50) OR (b) THE AMOUNT OF FEES PAID BY YOU TO EFITNESS PAL IN THE 12-MONTHS PRIOR TO DATE THE CLAIM. IF YOU ARE A CONSUMER RESIDING IN THE EUROPEAN UNION, YOU HAVE LEGAL REMEDIES IF WE CAUSE YOU LOSS BY OUR BREACH OR NON-PERFORMANCE OF OUR LEGAL OBLIGATIONS, OR BY OUR NEGLIGENCE, AND THESE TERMS DO NOT AFFECT THOSE STATUTORY REMEDIES. You agree to indemnify and hold eFitness Pal and its subsidiaries, affiliates, officers, agents, representatives, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise seek to make available through the Services, your use of the Services, your athletic activities which generate the Content you post or seek to post on the Services (including, but not limited to, athletic activities in connection with any contests, races, group rides, or other events which eFitness Pal sponsors, organizes, participates in, or whose Services are used in connection with), your connection to the Services, your violation of the Terms, your violation of any data protection or privacy laws, or your violation of any rights of another person or entity. Your rights with respect to eFitness Pal are not modified by the foregoing indemnification if the laws of your country of residence, applicable as a result of your use of our Services, do not permit it. Under California Civil Code Section 1789.3, California Services members are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to the eFitness Pal's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of this agreement to arbitrate, all claims arising out of or relating to this Agreement and your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with its provisions and procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with this Agreement. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, eFitness Pal will pay the additional cost. You and eFitness Pal hereby expressly waive trial by jury. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if eFitness Pal is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. This provision does not apply to users who live in the European Union. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction. You have the right to opt out and not be bound by the arbitration- and class-action-waiver provisions set forth in this section by sending written notice of your decision to opt out to the following address: eFitness Pal, Attn: Legal Department, 1483 Lost Creek Rd. Thayne, WY 83127. The notice must be sent within 30 days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, eFitness Pal also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, eFitness Pal may terminate your use of the Services. You agree that any claim you may have arising out of or related to your relationship with eFitness Pal and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred. This provision does not apply if you are based in the European Union in which case time limitations shall be determined in accordance with governing law for EU users mentioned below. Any action related to the Terms, Content, the Services, and your relationship with the eFitness Pal shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the Section entitled “Dispute Resolution”, the parties irrevocably consent to bring any action to enforce this Agreement in the federal or state courts embracing San Francisco, California and you consent to the exclusive jurisdiction of the federal or state courts embracing San Francisco, California. If any party hereto brings any suit or action against another for relief, declaratory or otherwise, arising out of these Terms, the prevailing party will have and recover against the other party, in addition to all court costs and disbursements, such sum as the court may adjudge to be reasonable attorneys’ fees. Except to the extent prohibited by applicable law, the parties agree that any claim or cause of action arising out of or related to use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This paragraph does not apply to users who reside in the European Union. If you are a user based in the European Union, then Irish law shall apply to these Terms and the Irish courts shall have exclusive jurisdiction to hear disputes arising in relation to the Terms. Despite this, your local laws in your European Union Member State may allow you to take legal action against eFitness Pal in your Member State and to invoke certain local laws against eFitness Pal. This Services are controlled by eFitness Pal from its offices within the United States of America. eFitness Pal makes no representation that the Content or the Services are appropriate or available for use in other locations. Access to or use of the Content or the Services from territories where such access or use is illegal is prohibited. Those who choose to access the Services from locations outside of the United States do so on their own initiative and are responsible for compliance with applicable local laws. You may not use or export the Content in violation of U.S. export laws and regulations. You agree that eFitness Pal may, under certain serious circumstances and without prior notice, immediately terminate your account and/or access to the Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements, policies or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any portion thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) nonpayment of any fees owed by you in connection with the Services. Termination of your account may include (x) removal of access to all offerings within the Services, (y) deletion of your information, files and Content associated with your account, and (z) barring of further use of the Services. Further, you agree that all terminations for cause shall be made in eFitness Pal's sole discretion and that eFitness Pal shall not be liable to you or any third party for any termination of your account or access to the Services. The following Sections shall survive termination of your account and/or the Terms: Proprietary Rights, Your Feedback, Disclaimer of Warranties and Liability, Indemnity, Applicable Laws and General. You agree that no joint venture, partnership, joint controllership, employment or agency relationship exists between you and eFitness Pal as a result of the Terms or your use of the Services. The Terms constitute the entire agreement between you and eFitness Pal with respect to your use of the Services. The failure of eFitness Pal to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You may not assign, delegate or otherwise transfer your account or your obligations under these Terms without the prior written consent of eFitness Pal. eFitness Pal has the right, in its sole discretion, to transfer or assign all or any part of its rights under these Terms and will have the right to delegate or use third party contractors to fulfill its duties and obligations under these Terms and in connection with the Services. eFitness Pal's notice to you via email, regular mail or notices, posts, or links on the Services shall constitute acceptable notice to you under the Terms. A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Section titles and headings in the Terms are for convenience only and have no legal or contractual effect. Any rights not expressly granted herein are reserved. Certain provisions of the Terms may be supplemented or superseded by expressly designated legal notices or terms located on particular pages on the Services. eFitness Pal reserves the right to update the Terms at any time and for any reason in its sole discretion. eFitness Pal will notify you of any material changes to the Terms or to any service or other features of the Services. By continuing to access or use the Services after we have provided you with notice of a modification, you are agreeing to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Services. eFitness Pal and its third party service providers may make improvements and/or changes in the Services, products, services, mobile applications, features, programs, and prices described at any time and for any reason in its sole discretion. The mobile application may download and install upgrades, updates and additional features in order to improve, enhance, and further develop the Services. eFitness Pal reserves the right at any time to modify or discontinue, temporarily or permanently, the Services or any portion thereof with or without notice. You agree that eFitness Pal shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. We will respond to any questions regarding the Services and these Terms via support@efitnesspal.com We generally respond to support requests within a few business days after the request is placed.Payments and Fees
Trial Subscriptions
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