PLEASE READ THESE TERMS OF SERVICE ("TERMS") AS THESE TERMS CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.
ExerClock and its predecessors, successors, licensors, beneficiaries and/or affiliates (collectively, “ExerClock”) welcome you to www.ExerClock.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.
ExerClock 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 October 14, 2014.
1. IMPORTANT DISCLAIMER.
THE INFORMATION PROVIDED THROUGH THIS SITE OR SENT TO YOU BY EXERCLOCK 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 EXERCLOCK 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 EXERCLOCK AND THE SITE’S TRAINERS, AFFILIATES AND EMPLOYEES MAKES AN EFFORT TO PROVIDE QUALITY INFORMATION TO YOU, EXERCLOCK DISCLAIMS ANY IMPLIED GUARANTEE REGARDING THE ACCURACY, COMPLETENESS, TIMELINESS, OR RELEVANCE OF ANY INFORMATION PROVIDED THROUGH THIS SITE OR SENT TO YOU BY A EXERCLOCK 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.
3. Limitations on Use.
ExerClock 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 ExerClock. 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.
4. 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:
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: ExerClock
PO Box 102
Nashotah, WI 53058
Phone: (262) 369-8750
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.
5. Account Security.
You are responsible for maintaining the confidentiality of your username and password that you designate during the registration process. In addition, you are also 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. ExerClock 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. User Generated Content.
We may offer Members 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 submit in connection with any of the foregoing activities is referred to as "User Generated Content." Members 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 ExerClock 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 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 ExerClock 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 ExerClock. ExerClock shall have no obligation to return such content to users.
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 ExerClock, 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.
8. DISCLAIMERS OF WARRANTIES.
OU USE THE SITE AT YOUR OWN RISK. EXERCLOCK 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 EXERCLOCK 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. EXERCLOCK 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 EXERCLOCK WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
9. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT EXERCLOCK, AND CASE MANAGEMENT SPECIALISTS, INC., AND OR ANY AFFILIATES 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, BODILY INJURY, PHYSICAL INJURY, 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 EXERCLOCK’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 EXERCLOCK. IF ANY PORTION OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
ANY STATEMENTS, PROGRAMS, OPINIONS, OR OTHER INFORMATION THAT MAY BE PROVIDED TO YOU BY A TRAINER ARE SOLELY ATTRIBUTABLE TO THE TRAINER- NOT EXERCLOCK 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. EXERCLOCK MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT, ABILITY OR THE EFFICACY, ACCURACY, COMPLETENESS, TIMELINESS OR RELEVANCE OF THE INFORMATION PROVIDED BY THE EXERCLOCK 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 EXERCLOCK 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.
You agree to defend, indemnify, and to hold harmless ExerClock, Case Management Specialists, Inc. and/or any business affiliates, together with their 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 ExerClock (and its officers and directors) harmless applies whether a claim against ExerClock 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.
12. Third Party Web Sites.
13. 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 Wisconsin, United States of America applicable to contracts made entirely within Wisconsin and wholly performed in Wisconsin, 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 Waukesha, Wisconsin. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
14. Miscellaneous Terms.
ExerClock may assign its rights and obligations under these Terms. These Terms will inure to the benefit of ExerClock’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.