These terms of use (“Terms of Use”) are entered into by and between You and FYFER LLC. (“Fyfer,” “FYFER,” the “Company,” “we,” or “us”). The Company provides virtual training and social media for the fitness community, along with related products, services, features and user content through our and mobile device application (collectively the “Services”). By registering as a user, or by visiting, browsing, reviewing, downloading, or sharing the Services, sending the Company communications, or otherwise using the Services in any way, you as a user accept and agree to be bound by the following terms and conditions, which, together with any documents they expressly incorporate by reference (collectively, “Terms of Use“), govern your access to and use of the Services. Further, by using the Services, you also agree to our Privacy Policy, found within the app, incorporated herein by reference.
You agree that all information you provide to register for the Services or otherwise, including, but not limited to, through the use of any interactive features of the Services, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy. If you do not want to agree to these Terms of Use or the Privacy Policy, you must not access or use the Services.
We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.
For purposes of these Terms of Use, “User Contributions” means any content that users of the Services provide to Fyfer to be made available to other users in the context of their own personal, noncommercial, and proper use of the Services. User Contributions are the sole responsibility of the user who submits or posts such User Contributions to Fyfer under their User Account. In submitting or posting User Contributions to your User Account, you represent and warrant that:
Any User Contribution you submit or post under your User Account or on any of Fyfer’s Services will be considered non-confidential and non-proprietary. In submitting or posting User Contributions, you expressly grant Fyfer a worldwide, perpetual, irrevocable, non-exclusive, transferable, and royalty-free license to use, copy, transmit, distribute, publicly perform, display, edit, modify, and make derivative works of your User Contributions for any purpose, commercial or otherwise without compensation, renumeration, or royalties to you for such use. By accepting these Terms of Use, you also waive any rights of publicity or privacy with respect to User Contributions, including any “moral rights” to said User Contributions. Additionally, by accepting these Terms of Use, you also grant all other users of the Services to view your User Contributions in the context of their own personal, noncommercial and proper use of the Services.
These Content Standards apply to any and all User Contributions and use of the Services. User Contributions must in their entirety comply with all applicable federal, state, local, and international laws and regulations. Without limiting the foregoing, User Contributions must not:
All User Contributions must comply with the Content Standards set out in these Terms
of Use. As such, you represent and warrant that:
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Services
We have the right to:
Remove or refuse to post any User Contributions for any or no reason in our
sole discretion.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the mobile device application. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
Users may utilize the reporting features included in the Services to report content they perceive to be obscene, inappropriate, objectionable, or otherwise in violation of these Terms of Use. However, we do not undertake to review material before it is posted on any part of the Services, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
You acknowledge and agree that:
We respect the intellectual property rights of others and expect all users to do the same. If we receive a valid notice that content available through the Services infringes a third party’s copyright, we may remove or disable access to that content at our sole discretion and without prior notice. In accordance with the United States Digital Millennium Copyright Act of 1998 (“DMCA”), we respond to copyright infringement notices submitted by copyright owners or their authorized representatives. We also reserve the right to remove allegedly infringing content at any time, with or without notice. If you believe that any content made available through the Services infringes your copyright, you may submit a DMCA notice requesting that the content be removed or access to it be disabled. If you believe a copyright claim has been submitted against you in error, you may submit a counter-notification as permitted under the DMCA. All notices and counter-notices must comply with the requirements of the DMCA. Because submitting false copyright claims may result in significant legal penalties, we recommend consulting a qualified legal advisor before filing a notice or counter-notice. DMCA notices and counter-notices should be sent to the Company’s designated copyright agent at doug@kimandlahey.com. In appropriate circumstances, and at our sole discretion, we may suspend or terminate the User Accounts of individuals who are repeat copyright infringers.
You may use the Services only for lawful purposes and in accordance with these Terms of Use. You agree not to use the mobile device application:
Additionally, you agree not to:
The Services, including all content, features, and functionality made available through them—such as information, software, text, graphics, images, videos, audio, and the overall design, selection, and arrangement of such materials—are owned by the Company, its licensors, or other content providers. These materials are protected by United States and international copyright, trademark, patent, trade secret, and other applicable intellectual property and proprietary rights laws.
These Terms of Use grant you a limited, non-exclusive, and non-transferable right to access and use the Services solely for your personal, non-commercial purposes. Except as expressly permitted by these Terms of Use, you may not reproduce, distribute, modify, create derivative works from, publicly display, publicly perform, republish, download, store, or transmit any part of the Services, except as follows:
If you wish to use any material from the Services in a manner not expressly permitted under these Terms of Use, you must first obtain our written permission by contacting us at contact@fyferapp.com.
No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Services not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.
The Company name, brand, and marks, including FYFER, Fyfer, fyfer, and all related names, logos, product names, service names, designs, and slogans, are trademarks, including federally registered trademarks and service marks, of the Company or its affiliates or licensors. You may not use any of these trademarks without the Company’s prior written permission. All other names, logos, product names, service names, designs, and slogans appearing in the Services are the trademarks of their respective owners.
If you provide suggestions for improvements or new features, or submit any review, feedback, or testimonial regarding the Services, Fyfer, or its representatives, you grant Fyfer a worldwide, perpetual, irrevocable, non-exclusive, transferable, and royalty-free license to use, copy, reproduce, transmit, distribute, publicly perform, publicly display, edit, modify, and create derivative works from such submissions for any purpose, whether commercial or non-commercial. This includes, without limitation, use in promotional materials, marketing campaigns, product development, and new Services. Such use may occur without prior notice to you, without compensation, remuneration, or royalties, and without any further obligation to you.
The Services may include content provided by third parties, including materials submitted by other users, bloggers, licensors, syndicators, aggregators, and reporting services. Any statements, opinions, articles, responses to questions, or other content, including User Contributions, that are not provided by the Company are solely the responsibility of the individual or entity that created them and do not necessarily reflect the views of the Company. We are not responsible or liable for the content, accuracy, completeness, or reliability of any third-party materials. Third-party information made available through the Services is provided for general informational purposes only. We make no representations or warranties regarding the accuracy, completeness, or usefulness of such information, and any reliance you place on it is entirely at your own risk. To the fullest extent permitted by law, we disclaim all liability arising from any reliance placed on such materials by you, other users, or any person who may become aware of their contents.
The Services may contain links to websites, applications, or resources operated by third parties. These links, including those contained in advertisements, banner ads, and sponsored content, are provided solely for your convenience. The Company does not control, endorse, or assume responsibility for the content, policies, or practices of any third-party websites or resources, and shall not be liable for any loss or damage arising from your access to or use of them. If you choose to access any third-party website or application through the Services, you do so entirely at your own risk and are subject to the applicable terms, conditions, and privacy policies of those third parties.
All information collected through the Services is governed by our Privacy Policy. By accessing or using the Services, you acknowledge that you have read and understood the Privacy Policy and consent to the collection, use, storage, and disclosure of your information in accordance with its terms.
We may revise or update these Terms of Use at any time in our sole discretion. Any changes will become effective immediately upon posting and will apply to all subsequent access to and use of the Services. By continuing to access or use the Services after revised Terms of Use have been posted, you acknowledge and agree to be bound by the updated Terms. You are responsible for reviewing these Terms periodically to remain informed of any changes, as they are legally binding upon you.
The Services are owned and operated from the State of South Carolina in the United States. The Services are intended for use by individuals located within the United States, and we make no representation or warranty that the Services or any content made available through them is appropriate for or accessible in other jurisdictions. Access to the Services from locations outside the United States is undertaken at your own initiative and risk, and you are solely responsible for ensuring compliance with all applicable local laws and regulations.
You understand and acknowledge that we cannot and do not guarantee or warrant that files available for download from the internet or through the Services will be free from viruses, malware, or other harmful code. You are solely responsible for implementing appropriate security measures, including antivirus protection, data verification procedures, and maintaining independent backups to restore any lost data. To the fullest extent permitted by applicable law, the Company shall not be liable for any loss or damage resulting from distributed denial-of-service (DDoS) attacks, viruses, malware, or other technologically harmful materials that may infect your computer equipment, software, data, or other proprietary material as a result of your use of the Services, your downloading of any content made available through the Services, or your access to any third-party application or website linked from the Services.
YOUR USE OF THE SERVICES, INCLUDING ALL CONTENT, USER CONTRIBUTIONS, MATERIALS, AND ANY PRODUCTS OR SERVICES OBTAINED THROUGH THE SERVICES, IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NEITHER THE COMPANY NOR ITS AFFILIATES, EMPLOYEES, AGENTS, OR REPRESENTATIVES MAKES ANY WARRANTY OR REPRESENTATION REGARDING THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES.
WITHOUT LIMITING THE FOREGOING, THE COMPANY DOES NOT WARRANT THAT THE SERVICES, THEIR CONTENT, OR ANY MATERIALS MADE AVAILABLE THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, UNINTERRUPTED, OR FREE FROM DEFECTS; THAT ANY DEFECTS WILL BE CORRECTED; THAT THE SERVICES OR THE SERVERS HOSTING THEM ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICES WILL OTHERWISE MEET YOUR REQUIREMENTS OR EXPECTATIONS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANY WARRANTY OR RIGHT THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY, ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR ACCESS TO, USE OF, OR INABILITY TO USE THE SERVICES, ANY LINKED APPLICATIONS, OR ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES. THIS EXCLUSION OF LIABILITY APPLIES TO ALL DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, OR LOSS OF DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE POSSIBILITY OF SUCH DAMAGES WAS FORESEEABLE.
IN NO EVENT SHALL THE COMPANY’S TOTAL AGGREGATE LIABILITY TO YOU EXCEED THE GREATER OF: (A) FIFTY U.S. DOLLARS (US $50); OR (B) THE TOTAL AMOUNT PAID BY YOU TO THE COMPANY FOR THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
You agree to defend, indemnify, and hold harmless the Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms of Use or your use of the Services, including, but not limited to, your User Contributions, any use of the Services’ content, services, other User Contributions, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Services.
ANY CLAIM, CAUSE OF ACTION, OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION FIRST ACCRUES. FAILURE TO INITIATE SUCH ACTION WITHIN THIS TIME PERIOD WILL RESULT IN THE CLAIM BEING PERMANENTLY BARRED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You and the Company agree that any dispute, claim, or controversy arising out of or relating to these Terms of Use or the Services (a “Dispute”) will be resolved through binding arbitration rather than in court, except that either party may bring an individual action in small claims court if eligible. Before initiating arbitration, the parties agree to first attempt to resolve the Dispute informally by contacting the other party and participating in a good-faith discussion. Arbitration will be administered by JAMS under its applicable rules. The arbitration will be conducted on an individual basis only.
YOU AGREE THAT:
The arbitrator will have authority to award any relief available under applicable law, on
an individual basis only. This section survives termination of these Terms
No waiver by the Company of any term or condition set forth in these Terms of Use shall be deemed a continuing waiver of such term or condition or a waiver of any other term or condition. Any failure by the Company to enforce any right or provision under these Terms of Use shall not constitute a waiver of that right or provision.
If any provision of these Terms of Use is determined by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable, that provision shall be limited or eliminated only to the minimum extent necessary, and the remaining provisions of these Terms of Use shall remain in full force and effect.
These Terms of Use, together with our Privacy Policy, constitute the entire agreement between you and the Company regarding your access to and use of the Services and supersede all prior and contemporaneous agreements, understandings, representations, warranties, and communications, whether written or oral, relating to the Services.
This mobile device application is operated by FYFER LLC.
All other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: FYFER customer service, at contact@fyferapp.com.