TERMS OF SERVICE FITORBIT, INC

PLEASE READ THESE TERMS OF SERVICE ("TERMS") AS THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.

FITORBIT, Inc., and its predecessors, successors, licensors, beneficiaries and/or affiliates (collectively, “FITORBIT”) welcome you to FITORBIT.com (the "Site"), which includes all web pages within the Site. By using the Site, you agree to be bound by these Terms, whether or not you register as a Member of the Site. If you do not agree to all of the Terms, do not use the Site.

FITORBIT may revise and update these Terms at any time. Your continued use of the Site will mean you accept the revised Terms.

YOU MUST BE 18 YEARS OF AGE OR OLDER TO USE THE SITE. INDIVIDUALS UNDER THE AGE OF 18 ARE NOT ELIGIBLE TO USE THE SITE AND MUST NOT ATTEMPT TO REGISTER WITH THE SITE.

These Terms were last updated on December 30, 2010.

1. IMPORTANT DISCLAIMER.
THE INFORMATION PROVIDED THROUGH THIS SITE OR SENT TO YOU BY A FITORBIT TRAINER IS INTENDED TO ASSIST YOU IN YOUR FITNESS EFFORTS. ALL INFORMATION IS OF A GENERAL NATURE AND IS FURNISHED FOR EDUCATIONAL PURPOSES ONLY. YOU AGREE AND ACKNOWLEDGE THAT FITORBIT IS NOT A MEDICAL ORGANIZATION, HOSPITAL OR STAFFED BY MEDICALLY TRAINED PERSONNEL. THE INFORMATION PROVIDED THROUGH THIS SITE IS NOT INTENDED AS A SUBSTITUTE FOR MEDICAL COUNSELING, OR THE PROFESSIONAL ADVICE OF YOUR PERSONAL PHYSICIAN. BEFORE YOU BEGIN ANY FITNESS OR NUTRITION PROGRAM, CONSULT YOUR PHYSICIAN TO DETERMINE IF THE FITNESS OR NUTRITION PROGRAM IS RIGHT FOR YOUR NEEDS. DO NOT START A FITNESS OR NUTRITION PROGRAM IF YOUR PHYSICIAN ADVISES AGAINST IT. PLEASE NOTE THAT THE SITE’S TRAINERS, AFFILIATES OR EMPLOYEES CANNOT PROVIDE YOU WITH MEDICAL ADVICE AND NOTHING THAT YOU MAY READ ON THIS SITE OR THAT IS OTHERWISE PROVIDED TO YOU BY THE SITE’S TRAINERS, AFFILIATES OR EMPLOYEES SHOULD BE CONSTRUED AS SUCH. ALTHOUGH FITORBIT AND THE SITE’S TRAINERS, AFFILIATES AND EMPLOYEES MAKES AN EFFORT TO PROVIDE QUALITY INFORMATION TO YOU, FITORBIT DISCLAIMS ANY IMPLIED GUARANTEE REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELEVANCE OF ANY INFORMATION PROVIDED THROUGH THIS SITE OR SENT TO YOU BY A FITORBIT TRAINER OR THE SITE. FOR EXAMPLE, HEALTH, DIET & FITNESS ADVICE IS OFTEN SUBJECT TO UPDATING AND REFINING DUE TO MEDICAL RESEARCH AND DEVELOPMENTS. NO ASSURANCE CAN BE GIVEN THAT THE INFORMATION PROVIDED THROUGH THIS SITE WILL REFLECT THE MOST RECENT FINDINGS OR DEVELOPMENTS WITH RESPECT TO THE PARTICULAR MATERIAL. THE SITE IS INTENDED FOR USE ONLY BY HEALTHY ADULT INDIVIDUALS. THE SITE IS NOT INTENDED FOR USE BY MINORS OR INDIVIDUALS WITH ANY TYPE OF HEALTH CONDITION. SUCH INDIVIDUALS ARE SPECIFICALLY ADVISED TO SEEK PROFESSIONAL MEDICAL ADVICE PRIOR TO INITIATING ANY FITNESS OR NUTRITION EFFORT OR PROGRAM.

2. Registration.
There is no cost to register as a Member of the Site. However, if you do not register, you may be precluded from using certain features. You must register as a Member in order to obtain to a fitness or nutrition program or apply to be a FITORBIT trainer (a "Trainer"). FITORBIT reserves the right, at its sole discretion, to reject Trainer applicants. Members who wish to become a Trainer acknowledge that they will be subject to, and must agree in writing to comply with, additional terms and conditions. In order to obtain a fitness or nutrition program, you must provide the Site with certain personal information. The Site respects your privacy and a complete statement of the Site’s current privacy policy can be found by clicking here. The Site’s privacy policy is expressly incorporated into these Terms by this reference. It is imperative that you provide accurate and truthful information about your health and physical condition during the registration process. In becoming a Member with the intent of using a fitness or nutrition program, you represent and warrant to FITORBIT that all of the personal information you provided during the registration process is true and correct. FITORBIT RESERVES THE RIGHT TO REFUSE OR CANCEL YOUR MEMBER STATUS OR USE OF THE SITE IF FITORBIT DETERMINES THAT YOU HAVE OR IF YOU INFORM US THAT YOU HAVE CERTAIN CONDITIONS. FITORBIT RESERVES THE RIGHT TO CANCEL YOUR MEMBER STATUS SHOULD YOU VIOLATE THESE TERMS AND ANY OTHER POSTED POLICY ON THE SITE.

3. Fees.
Some of our features, such as the ability to receive a fitness or nutrition plan from a Trainer, require you to pay a subscription fee. You agree to pay the subscription fees and any other charges incurred in connection with your username and password (including any applicable taxes) at the rates in effect when the charges were incurred. The Site uses PayPal to process your credit card transactions. We will bill all charges automatically to your credit card or PayPal account. Your initial subscription fees will be billed at the beginning of your subscription. Renewal fees will be billed on a weekly or monthly basis dependent on the length of your subscription. All fees and charges are nonrefundable, except in instances where we are unable or unwilling to provide the requested services. We may change the fees and charges then in effect, or add new fees or charges, by giving you notice in advance.

4. Term, Renewal, and Expiration.
Your subscription will renew automatically for consecutive periods of the same duration as the subscription term originally selected, unless we terminate it or you notify us by email at support@fitorbit.com, and/or through our system (receipt of which must be confirmed by email reply from us) of your decision to terminate your subscription. You must cancel your subscription before it renews in order to avoid billing of subscription fees for the renewal term to your credit card.  Subject to the foregoing, ANY CREDITS OR POINTS WHICH REMAIN OUSTANDING AND UNUSED FOR A PERIOD OF MORE THAN ONE (1) CALENDAR YEAR FROM THE DATE OF PURCHASE OF SUCH CREDITS OR POINTS SHALL BE SUBJECT TO EXPIRATION AND TERMINATION BY FITORBIT, AT ITS SOLE DISCRETION, AND NO REFUND OR OTHER COMPENSATION WILL BE GIVEN TO YOU IF SUCH EXPIRATION AND TERMINATION OCCURS.

5. Account Security.
You are responsible for maintaining the confidentiality of your username and password that you designate during the registration process, and you are fully responsible for all activities that occur under your username and password. You shall immediately notify us of any unauthorized use of your username or password or any other breach of security. FITORBIT will not be liable for any loss or damage arising from your failure to comply with this provision. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

6. Limitations on Use.
FITORBIT grants to you a limited personal, non-exclusive and non-transferable right and license to access the Site. Unless otherwise specified in writing, the Site is for your personal and non-commercial use. The Site including, without limitation, the content, metadata, design, organization, compilation, look and feel, the fitness and nutrition plans and programs and all other protectable intellectual property available through the Site (the “Proprietary Materials”) are the Site’s property or the property of our licensors and are protected by copyright and other intellectual property laws. All rights regarding the Proprietary Materials not expressly granted in this Agreement are reserved by FITORBIT. Unless you have our written consent, you may not copy, reproduce, sell, publish, distribute, display, retransmit or otherwise provide access to the Proprietary Materials received through the Site to anyone. You agree not to rearrange, modify or create derivative works using the Proprietary Materials. You agree not to create, scrape or display our content for use on another web site or service. You agree not to post any content from the Site to weblogs, news groups, mail lists or electronic bulletin boards, without our written consent.

7. Notice for Claims of Copyright Violations
If you believe that your work has been copied and posted on our Site in a way that constitutes copyright infringement, you should provide our Copyright Agent with a written notice that sets forth the infringement details. To be effective, the notice must contain the following information:

Please provide:
  1. a description of the copyrighted work that you believe has been infringed;
  2. a description of the material that you claim is infringing the copyrighted work identified in #1, and a detailed description of where it is located on our web site.
  3. your address, telephone number, and email address;
  4. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  5. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.

Please send the written communication to our Copyright Agent at the following address:

By mail: 11611 San Vicente Blvd, Suite 515
Los Angeles, CA 90049
Phone: (424) 652-9650
Email: support@fitorbit.com

We reserve the right, in appropriate circumstances and at our discretion, to terminate the privileges of any account holder who repeatedly infringes the copyrights or other intellectual property rights of others.

8. User Generated Content.
We may offer Members and Trainers the opportunity to comment on and engage in discussions and otherwise post content on our Site. Any and all information, data, text, photographs, graphics, video, messages, tags, or other materials that Members and Trainers submit in connection with any of the foregoing activities is referred to as "User Generated Content." Members and Trainers are entirely responsible for all User Generated Content that they upload, post, email, transmit or otherwise make available via the Site. By posting User Generated Content on our Site, you automatically grant, and you represent and warrant that you have the right to grant, to FITORBIT, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing. You further represent and warrant that posting and use of your User Generated Content will not infringe or violate the rights of any third party. We retain the right (but not the obligation) in our sole discretion to pre-screen, refuse, or remove any User Generated Content. Without limiting the foregoing, we retain the right to remove any User Generated Content that violates these Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, your use of any User Generated Content, including any reliance on the accuracy, completeness, or usefulness of such User Generated Content. We do not control the User Generated Content or guarantee the accuracy, integrity or quality of such User Generated Content regardless of who posted it and whether or not the person who posted has been accepted as a Trainer or Member. You understand that by using the Site you may be exposed to User Generated Content that is offensive, indecent, and/or objectionable. Under no circumstances will we be liable in any way for any User Generated Content, including, but not limited to, any errors or omissions in any User Generated Content, or any loss or damage of any kind incurred as a result of the use of any User Generated Content posted, emailed, transmitted or otherwise made available via the Site. You acknowledge, consent and agree that we may access, preserve and disclose your account information and User Generated Content if required to do so by law or in a good faith belief that it is reasonably necessary to: (i) comply with legal process; (ii) enforce these Terms (iii) respond to infringement or other claims; or (iv) protect our rights, property or personal safety of our Members and the public. In addition to the foregoing, you acknowledge and agree that if you send any User Generated Content to FITORBIT or any of its employees or Trainers by email or other method (other than posting through our Site), that such User Generated Content becomes the non-exclusive property of FITORBIT. FITORBIT shall have no obligation to return such content to users.

9. Conduct.
We reserve the right to terminate your Member status if you misuse the Site or violate these Terms including, without limitation, the following rules of conduct:

You may not:
  • Upload, post, transmit to other Members by any means, or otherwise make available any content or materials that are unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
  • Impersonate any person or entity, including another Member, Trainer, or other employee of FITORBIT, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted;
  • Upload, post, email, transmit to other Members by any means, or otherwise make available any content or materials that you do not have a right to make available under any law or under contractual or fiduciary relationships;
  • Upload, post, email, transmit to other Members by any means, or otherwise make available any content or materials that infringe any patent, trademark, trade secret, copyright or other proprietary rights of any party;
  • Upload, post, transmit to other Member by any means, or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
  • Upload, post, email, transmit to other Members by any means, or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
  • Attempt to interfere with or disrupt our servers or networks;
  • Intentionally or unintentionally violate any applicable local, state, national or international law or any regulations having the force of law;
  • "Stalk" or otherwise harass another; k. Solicit, collect or post personal data or attempt to solicit, collect or post personal data about other users, including user names or passwords; or access or attempt to access another user's account without his or her consent; and/or
  • Post, disseminate, transmit or otherwise distribute your personal data or plan data on any website or through other digital, electronic or printed forum.

10. DISCLAIMERS OF WARRANTIES. YOU USE THE SITE AT YOUR OWN RISK. FITORBIT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, TIMELINESS OR EFFICACY OF THE CONTENT OF THE SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS, MISTAKES, OR INACCURACIES IN SUCH CONTENT. YOU AGREE THAT YOUR ACCESS TO, AND USE OF, THE SITE AND THE CONTENT AND SERVICES AVAILABLE THROUGH THE SITE IS ON AN "AS-IS", "AS AVAILABLE" BASIS AND FITORBIT SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATIONS OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FITORBIT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS, OFFERINGS, CONTENT AND MATERIALS IN THIS SITE. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN FITORBIT WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.

11. Limitation of Liability YOU ACKNOWLEDGE AND AGREE THAT FITORBIT SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY OTHER DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FITORBIT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF, OR RESULTING FROM, (A) THE USE OR THE INABILITY TO USE THE SITE; (B) THE USE OF ANY CONTENT OR OTHER MATERIAL ON THE SITE OR ANY WEBSITES LINKED TO THE SITE, (C) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SITE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; OR (F) ANY OTHER MATTER RELATING TO THE SITE. IN NO EVENT SHALL FITORBIT’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE], OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU TO FITORBIT. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

12. Trainers.
FITORBIT DOES NOT ENDORSE OR RECOMMEND ANY TRAINER ON THE SITE. ANY STATEMENTS, PROGRAMS, OPINIONS, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY A TRAINER ARE SOLELY ATTRIBUTABLE TO THE TRAINER- NOT FITORBIT OR THE SITE. RELIANCE ON ANY INFORMATION PROVIDED BY A TRAINER ON OR THROUGH THE SITE IS SOLELY AT YOUR OWN RISK. BEFORE YOU BEGIN ANY FITNESS OR NUTRITION PROGRAMS, CONSULT YOUR PHYSICIAN TO DETERMINE IF THE FITNESS OR NUTRITION PROGRAMS ARE RIGHT FOR YOUR NEEDS. FITORBIT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, ABILITY OR THE EFFICACY, ACCURACY, COMPLETENESS, TIMELINESS OR RELEVANCE OF THE INFORMATION PROVIDED BY THE FITORBIT TRAINERS AND/OR THE SERVICES PROVIDED BY SAID TRAINER OR BY THIRD PARTIES FEATURED ON THE SITE INCLUDING BUT NOT LIMITED TO, CELEBRITY TRAINERS. IN NO EVENT SHALL FITORBIT BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES RESULTING FROM YOUR USE OF ANY INFORMATION, PROGRAM OR SUGGESTION PROVIDED TO YOU BY A TRAINER OR COMMUNICATIONS OR MEETINGS BETWEEN TRAINERS AND MEMBERS OF OR ANY OTHER PERSONS YOU MEET THROUGH THE SITE. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL INTERACTIONS WITH TRAINERS, CELEBRITY TRAINERS, THIRD PARTIES AND OTHER MEMBERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. IN THE EVENT THE SITE CHOOSES TO PROMOTE THE SERVICES OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO, A CELEBRITY TRAINER, YOU AGREE AND ACKNOWLEDGE THAT THE CELEBRITY TRAINER WILL NOT PERSONALLY BE PROVIDING THE FITNESS OR NUTRITION PROGRAMS, NOR COMMUNICATING WITH INDIVIDUAL MEMBERS DIRECTLY OR PERSONALLY.

13. Indemnification
You agree to defend, indemnify, and to hold harmless FITORBIT, together with its officers and directors, from any and all liabilities, penalties, claims, causes of action, and demands brought by third parties (including the costs, expenses and attorneys' fees on account thereof) arising, resulting from or relating to: (a) your use of the Site or your inability to use the Site; or (b) an allegation that you violated any representation, warranty, covenant or condition in these Terms. Your agreement to defend, to indemnify, and to hold FITORBIT (and its officers and directors) harmless applies whether a claim against FITORBIT is based in contract or tort (including strict liability), and regardless of the form of action, including but not limited to your violation of any third party right, a claim that the Site caused damage to you or to any third party and/or your use and access to the Site. This indemnification section shall survive your termination of or cessation of use of the Site.

14. Third Party Web Sites.
We may link to, or promote web sites or services from other companies or offer you the ability to download software from other companies. You agree that FITORBIT is not responsible for, and does not control, those websites. FITORBIT encourages you to be aware of this when you leave the Site, and to read the legal notices and privacy policies of each and every website you visit. Your use of a third-party website will be subject to such third-party’s terms of use and privacy policy.

15. Governing Law and Choice of Forum
These Terms contains the final and entire agreement between us regarding your use of the Site and supersedes all previous and contemporaneous oral or written agreements regarding your use of the Site. We may discontinue or change the Site, or its availability to you, at any time. These Terms are personal to you, which means that you may not assign your rights or obligations under this Agreement to anyone. You agree that these Terms, as well as any and all claims arising from these Terms will be governed by and construed in accordance with the laws of the State of California, United States of America applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of these Terms or in any way related to the Site will be an appropriate federal or state court located in Los Angeles, California. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.


16. Miscellaneous Terms.
FITORBIT may assign its rights and obligations under these Terms. These Terms will inure to the benefit of FITORBIT’s successors, assigns and licensees. The failure of either party to insist upon or enforce the strict performance of the other party with respect to any provision of these Terms, or to exercise any right under the Terms, will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect.

17. Promotions and Offers.
We may, as part of our services to users, encourage you to participate and enjoy our promotions. The following terms and conditions apply to all offers and promotions, unless otherwise stated. By accepting any promotional offer, you agree to be bound by the following additional terms. The Site reserves the right to send particular promotions to particular Members, Trainers, and other individuals. Price discounts cannot be used together or combined with other discount offers or promotional offers. Promotional offers are intended for the addressed recipient only and cannot be transferred. If you are not the intended recipient, then the offer is null and void. Unless you have elected not to receive promotional information, we may also use any personal information you provide to us (including your email address), to provide you (by email or otherwise) with information regarding our contests and promotions, as further described in our Privacy Policy. We may request further information from you if you wish to participate in our promotions and offers. Participation in these promotions is completely voluntary. Therefore, you have the choice to decline to participate in any promotion where you are required to provide further information about yourself.

PROSPECT MEDICAL OFFER: This offer is only valid for US employees and full time contractors of Prospect Medical Holdings, Inc. and their immediate family members (the “Customer”). To qualify for a full refund of the $199.00 purchase price, the Customer must comply with the following: (1) pay a membership fee of $199.00, not combined with any other offer or discounts, (2) sign up for FitOrbit’s online program (the “Program”) on www.fitorbit.com/prospect or purchase the Program using the coupon code “PROSPECT”, (3) receive 26 plan weeks from the Customer’s trainer, (4) not enter dormancy at any time during the term of the Customer’s membership and (5) log into the Program through the website (www.fitorbit.com/prospect) or the FitOrbit mobile application at least one time per a week during the term of the Customer’s membership.

© 2011 Fit Orbit, Inc. All rights reserved