USE OF SERVICES; OWNERSHIP OF CONTENT

All text, photographs, images, illustrations, artwork, audio and video clips, design, software, graphic material, trademarks, service marks and trade names, and all intellectual property rights in and to such items (hereinafter “Content”) constitute the sole and exclusive property of MFC or its subsidiaries, affiliates, licensors and content providers. The User is granted a personal, non-exclusive, non-assignable and non-transferable license to use the Content for non-commercial and personal, informational use only. The following acts are additionally prohibited without MFC’s prior written approval: copying of the Services or the Content or any portion, variations or derivatives thereof; reproduction, modification, creation of derivative works, display, performance, publication, distribution, dissemination, broadcast or circulation of any Content, in whole or in part (including without limitation, the display and distribution of the Content via a third party application or Web site); and disassembling, decompiling, reverse engineering or otherwise modifying the Content.

Modern Fitness Corporation, Inc. is the owner of the trademark SmartGymTM.

ADDITIONAL USER CONTENT GUIDELINES

MFC requests that the User not impede or inhibit any other User from using and enjoying the Services. Therefore, in using the Services, you agree not to: disrupt or interfere with the security of, or otherwise abuse, the Services, system resources, accounts, servers or networks connected to or accessible through the Services or affiliate linked websites/services; upload, post, or otherwise transmit through or on the Services any viruses or other harmful, disruptive or destructive files; use or attempt to use another’s account, service or system, or link to another site, without authorization from MFC, or create or use a false identity on the Services; or transmit through or on the Services spam, chain letters, junk mail or other types of unsolicited mass e-mail to people or entities who have not agreed to be part of such mailings.

MFC reserves the right to remove any content that it in its sole discretion believes is infringing, defamatory, illegal or offensive, or otherwise as may be permitted under the Digital Millennium Copyright Act or other applicable law. Further, any unauthorized or prohibited use may additionally subject the offender to civil liability and criminal prosecution under applicable federal and state laws.

SITE SUBMISSION

You may choose to submit information to MFC through our Site for various reasons, such as to become a SmartGym member, make a purchase, apply to become a franchisee or apply for SmartGym employment opportunities. By submitting information to MFC, you are authorizing us to utilize this information for the purpose for which it was submitted and for such other purposes as set out in our Privacy Policy. Nothing in these Terms and Conditions of Use or the Site shall constitute an offer or promise of employment or franchising relationship. We may or may not review all or any information submitted to us.

EMPLOYMENT OPPORTUNITIES

MFC may, from time to time, post SmartGym employment opportunities on the Site and/or invite users to submit resumes to it. If you choose to submit your name, contact information, resume and/or other personal information to MFC in response to employment listings, you are authorizing MFC to utilize this information for all lawful and legitimate hiring and employment purposes. MFC also reserves the right, at its sole discretion, to forward the information you submit to its parents, subsidiaries and affiliates for legitimate business purposes. Nothing in these Terms of Use or contained in the Site shall constitute a promise by MFC to interview, hire or employ any individual who submits information to it, nor shall anything in these Terms and Conditions of Use or contained in the Site constitute a promise that MFC will review any or all of the information submitted to it by users.

DISCLAIMERS

USER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT USER’S SOLE RISK. NEITHER MFC, ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS, SERVICE PROVIDERS, THIRD PARTY INFORMATION PROVIDERS, LICENSORS OR THE LIKE, WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY, RELIABILITY, SECURITY OR CONTENT OF ANY INFORMATION OR SERVICE CONTAINED IN OR PROVIDED THROUGH THE SERVICES.

THE SERVICES, ALL CONTENT AND INFORMATION PROVIDED THEREIN, AND ALL DOWNLOADABLE SOFTWARE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, AND ALL SUCH WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED AND EXPRESSLY NEGATED. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY MFC, ANY OF ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS OR ANY SERVICE PROVIDERS, THIRD PARTY INFORMATION PROVIDERS; LICENSORS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL USER RELY ON ANY SUCH INFORMATION OR ADVICE. USER HEREBY ACKNOWLEDGES THAT MFC IS NOT RESPONSIBLE FOR ANY INTERCEPTED INFORMATION SENT VIA THE INTERNET, AND USER RELEASES MFC FROM ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THE USE OF INTERCEPTED INFORMATION IN ANY UNAUTHORIZED MANNER.

LIMITATIONS OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MFC, ITS PARENTS, AFFILIATES, EMPLOYEES, AGENTS OR ANY THIRD PARTY INFORMATION PROVIDER, SERVICE PROVIDERS, LICENSOR, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE SERVICES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, LOST PROFIT, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES THAT RESULT FROM OR ARE RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT OR DESTRUCTION.

INDEMNIFICATION

The User agrees to indemnify, defend and hold harmless, MFC, its parents, affiliates, employees, agents, third party information providers, service providers, licensors or the like and their respective officers, directors, employees, agents, licensors, representatives, and third party providers to the Services from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of these Terms and Conditions by the User. MFC reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by User, in which event User will fully cooperate with MFC in asserting any available defenses.

SWEEPSTAKES AND/OR CONTESTS

Sweepstakes, contests, games and other promotions run on the SmartGym Site may require the visitor to provide some personally identifiable information such as full name, address, e-mail address, and phone number, in order to participate. MFC may use a reputable third party to manage and administer some or all of its sweepstakes and/or contests. This third party may have access to some or all of the personally identifiable information that is provided by the visitor in order to participate in the sweepstakes and/or contest. In those instances, the third party will be instructed by MFC to use the personally identifiable information only for the specific sweepstakes and/or contest related purpose for which it was requested, and in compliance with the MFC Privacy Policy. Most often this information is used only to select and contact winners of the sweepstakes and/or contests. Any other use of the personally identifiable information by the third party is strictly prohibited. Our sweepstakes and/or contests are targeted to individuals 18 years of age and older, and individuals under 18 years of age are not eligible to participate. MFC requires proof of age in order for an individual to collect any prizes awarded. Individuals may only be a prize winner once in any ninety (90) day period.

THIRD PARTY LINKS AND SITES

The Services may contain links to other Internet sites, resources and/or sponsors of the Services. MFC does not verify, warrant, endorse, or take responsibility for the availability, accuracy, completeness or quality of the content contained in these outside sites or resources. Providing links to outside sites does not constitute MFC’s approval of the content, policies or practices of those other sites. Be sure to review the terms of use and privacy policies posted on the outside sites or resources after utilizing them. In order to identify third party sites or resources, the Services may make use of third party trademarks, images or branding. Usage of these items does not imply endorsement or certification by the third party. Logos and trademarks displayed within the Services are the property of their respective owners and are used in accordance with existing agreements between MFC and the third party or by usage guidelines and policies set forth by the third party.

OPT-OUT OF RECEIVING FURTHER WEB-BASED MARKETING

You can choose to be removed from our web-generated marketing lists at any time. Each unsolicited commercial email includes instructions for opting out of further e-mail marketing communications. In addition, you can opt out of MFC’s marketing e-mail or print mail by sending an e-mail with “remove” in the subject line to [email protected]. To opt out by mail, please send your name, company, e-mail address and physical mailing address with “remove” in the subject line to 4835 E. Cactus Rd., Suite 215, Scottsdale, AZ 85254.

RESOLUTION OF DISPUTES

In the event a dispute arises between you and MFC d/b/a SmartGym, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and MFC agree that any claim or controversy at law or equity that arises out of this Agreement or our services (“Claims”) shall be resolved in accordance with one of the subsections below or as otherwise mutually agreed upon in writing by the parties. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation, as an alternative to litigation. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, you or MFC may elect to resolve the dispute through non-binding mediation, then, if unsuccessful, binding arbitration conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association or JAMS in accordance with their applicable rules, or any other established ADR provider mutually agreed upon by the parties. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The binding arbitration shall be conducted in Maricopa County, Arizona, or another location mutually agreed upon by the parties. Should either party file an action contrary to this Section, the other party may recover attorneys’ fees and costs up to $3,000, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim. You agree that this Agreement and all incorporated agreements may be automatically assigned by MFC in our sole discretion.

OTHER

These Terms and Conditions of Use shall be governed by, construed and enforced in accordance with the laws of the State of Arizona and the federal laws of the United States of America. Users agree to submit to the personal and exclusive jurisdiction of the state or federal courts located within the State of Arizona for any disputes arising from or related to the Services or these Terms and Conditions of Use. These Terms and Conditions are not intended to alter the terms or conditions of any other agreement you may have with MFC or its affiliates, parents, service providers or business associates to the extent that those agreements govern issues other than your use of the Services. Should any provision in these Terms and Conditions of Use be found invalid or unenforceable for any reason, that provision shall be deemed severable from the terms and shall not affect validity or enforceability of the remaining provisions. These Terms and Conditions of Use may not be altered by action, inaction or course of dealing between the parties. These Terms and Conditions of Use may only be altered by (a) prior written mutual agreement between MFC and User; or (b) MFC posting revisions on the Services. Failure by MFC to object to a User’s behavior, conduct or action does not constitute a consent, ratification or waiver of objection.

QUESTIONS

If you have any questions or concerns about our Terms and Conditions of Use, please write to MFC at:
Attn: Legal Department
4835 E. Cactus Rd., Ste. 215
Scottsdale, AZ 85254