Fitsmind Terms & Conditions

Effective as from 01 April 2017

1. Introductions

2. Changes to the Agreements

3. Enjoying Fitsmind

4. Licence and assignment

5. Third Party Applications

6. User generated content

7. Consideration

8. User Guidelines

9. Medical Agreement

10. Copyright infringement

11. Technology limitations and modifications

12. Export control

13. Payments, cancellations and cooling off

14. Term and termination

15. Warranty

16. Limitation

17. Entire agreement

18. Severability

19. Choice of law, mandatory arbitration and venue

 

Hello, and welcome to our Terms and Conditions of Use. Please read the following terms and conditions carefully before you make use of the services from us, Fitsmind. These are our relevant general terms and conditions regarding our apps and our website, and its services, functions, content and applications.

The online platform is currently at a beta-stage, i.e., certain functions do not work properly at the current time and there exists a higher probability for errors and problems to occur. Following completion of the beta-stage or a significant enhancement of the subject of the agreement subject to the user’s consent, amended general terms and conditions will enter into force.

In order to be able to use the complete spectrum of Fitsmind's products and services, a one-time registration shall be required. Certain content, including general descriptions of Fitsmind are for viewing without registration.

Your health is very important to us. ALWAYS consult your doctor about your athletic behavior. Fitsmind neither substitute your doctor, nor is responsible for your behavior. The contents of the Fitsmind sports portal (it doesn't matter if provided by Fitsmind, partners or users) aren't a help or an alternative to the information of a doctor or a pharmacy. Discontinue any exercise that causes you pain or severe discomfort and consult a medical expert. The authors of this web site, and all its content, cannot guarantee any exercise, health, weight loss or fitness results or improvements to the users of Fitsmind.

With the confirmation of these General Terms and Conditions, you confirm that you are solely responsible for your state of health.

1. Introductions

Thanks for choosing Fitsmind (“Fitsmind”, “we”, “us”, “our”). By using the Fitsmind service, websites, or software applications (together, the “Fitsmind Service” or “Service”), including by purchasing or receiving Codes or Limited Offers, you are entering into a binding contract with our local company in your country of residence (your “Local Country”) if applicable or the company listed in this chart. Your agreement with us includes these Terms and Conditions of Use (“Terms”) and our Privacy Policy (together with the Mobile Terms where applicable, the “Agreements”). If you don’t agree with these Terms, then please don’t use the Service.

We’re pleased to make our Service available to you. The Fitsmind Service includes social and interactive features. Fitsmind operates an online platform (“Website“) as well as a mobile application (“App“) aiming to offer services and information in the field of sports, fitness, nutrition and health to its users. The mobile Apps can be used both isolated on the smartphone as well as in connection with the website. Subject to the user's consent, relevant data is transmitted from the smartphone to the Fitsmind Website and shared with other social networks (e.g., Facebook), respectively. The user hereby confirms its knowledge that as a result of the transmission of data from the smartphone to the Fitsmind Website, certain costs of the mobile carrier will be incurred that have to be borne by the user.

Limitation: The service is only available to users of smartphones. Only the basic functionality of the application is available for free. Additional terms and conditions on the part of the mobile phone-providers app

In order to be able to use the Fitsmind Website, a one-time, free registration is required. Only persons legally capable to enter into agreements on their own behalf shall be permitted to register with Fitsmind. 

By registering, the user confirms its knowledge and the unlimited recognition of the content of these General Terms and Conditions.

Each user shall register with Fitsmind only once and confirms with its registration that it has not registered with Fitsmind before and has not deleted a previously activated user account.

In order to use the Fitsmind Service, you need to (a) be 18 or older, or be 13 or older and have your parent or guardian’s consent to these Terms, (b) have the power to enter a binding contract with us and are not barred from doing so under any applicable laws, and (c) be resident in the Local Country. You also warrant that any registration information that you submit to Fitsmind is true, accurate and complete, and you agree to keep it that way at all times.

Fitsmind may also, in the future, offer new services and/or features through the Website (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

2. Changes to the Agreements

Occasionally we may, in our discretion, make changes to the Fitsmind Service and Agreements. When we make changes to the Agreements that we consider material, we’ll notify you through the Service. By continuing to use the Service after those changes are made, you are expressing and acknowledging your acceptance of the changes.

3. Enjoying Fitsmind

Here’s some information about all the ways you can enjoy Fitsmind.

3.1 Subscriptions

Fitsmind account holders may access the Fitsmind Service by any of our several Subscriptions:

Premium 2-Month Service (“Coach”): an ad-free, subscription fee-based service which enables you to connect with your own dedicated Personal Trainer, among other features

iOS version (available in the Apple App Store): 
Fitsmind offers monthly (€12.99), quarterly (€24.99), annual (€44.99) or life-time (€349.99) subscriptions.

Each subscription comes with a 7 day free trial, which can be cancelled at any time. 

Subscriptions are auto-renewable which means that once purchased it will be auto-renewed every period until you cancel it 24 hours prior to the end of the current period. iTunes Account will be charged for renewal within 24-hours prior to the end of the current period. Manage your Subscription and Auto-Renewal by going to your Account Settings.

3.2. Codes and other Limited Offers

3.2.1 Overview 

If you have got hold of a “discount/referral/promotional” code on behalf of Fitsmind for access to the Monthly Subscription Service for the time period indicated on your email, message or receipt of the (“Code”), or if you are accessing the service through some other limited offer which you received or purchased from Fitsmind (“Limited Offer”), these Agreements apply to your access to the Service. Any separate sets of terms and conditions presented to you along with the Code or other Limited Offer also apply to your access to the Service using the Code or Limited Offer.

Subject to any rights you may have under Section 12, Codes are only redeemable in the country where you purchased/acquired such Code, not redeemable for cash and may not be returned for a cash refund, exchanged, resold or used to purchase other Codes.

3.2.2 Ambassador / referral codes 

We offer Fitsmind subscribers, including brand ambassadors/influencers/advocates (the "referrer") the ability to be rewarded for referring their friends/followers (the "referees") to Fitsmind in return for cash compensation ("Ambassador code") 

Each referrer will have the ability to generate their own unique Ambassador code for them to share with referees which will have a discount associated to it (e.g. 20% off). 

For every referree that purchases a Fitsmind subscription using a Ambassador code, we will compensate the referrer with a fixed level of cash compensation (e.g. €5). 

NOTE: the purchase of a Fitsmind subscription does not include any trial period - the referrer will only be compensated following trial period and purchase of plan. 

For administrative purposes, referral bonuses will only be paid out to the referrer following the successful referral of 5 referees. Referrals of less than 5 will be stored in credit for the referrer indefinitely. 

Ambassador codes may be withdrawn or discontinued at any time without notice, not limited to the misuse of the code by the referrer. 

3.3 Trials

For some of our programmes, we offer trials of the Premium Service and/or Unlimited Monthly Service for a specified period (e.g. 7 days) without payment (a “Trial”). Fitsmind reserves the right, in its absolute discretion, to determine your eligibility for a Trial, and to withdraw or to modify a Trial at any time without prior notice and with no liability.

For some Trials, we’ll require you to provide your payment details to start the Trial. At the end of such Trials, we may automatically start to charge you for the Premium Service on the first day following the end of the Trial, on a recurring monthly basis. By providing your payment details in conjunction with the Trial, you agree to this charge. If you do not want this charge, you must change your Subscription to the Free Service through your Fitsmind and/or Apple account’s settings before the end of the Trial.

4. Licence and assignment

The Fitsmind Service and the content provided through it are the property of Fitsmind or Fitsmind's licensors, and we grant you a limited, non-exclusive, revocable licence to make personal, non-commercial use of the Fitsmind Service and to receive the media content made available through the Fitsmind Service in your Local Country, based on the Subscription or Trial you have selected (the “Licence”). This Licence shall remain in effect for a period of 20 years unless terminated by you or Fitsmind.

The Fitsmind software applications are licensed, not sold, to you, and Fitsmind retains ownership of all copies of the Fitsmind software applications even after installation on your Devices. Fitsmind may assign these Agreements or any part of them without restrictions. You may not assign these Agreements or any part of them, nor transfer or sub-licence your rights under this Licence, to any third party.

All Fitsmind trademarks, service marks, trade names, logos, domain names, and any other features of the Fitsmind brand are the sole property of Fitsmind. This Licence does not grant you any rights to use the Fitsmind trademarks, service marks, trade names, logos, domain names, or any other features of the Fitsmind brand, whether for commercial or non-commercial use.

You agree to abide by our User Guidelines and not to use the Fitsmind Service (including but not limited to its content) in any manner not expressly permitted by the Terms.

Third party software libraries included in the Fitsmind Service are licensed to you either under these Terms, or under the relevant third party software library’s licence terms as published in the help or settings section of our desktop and mobile client and on our website.

5. Third Party Applications

The Fitsmind Service provides a platform for third party applications, websites and services to make available products and services to you (“Third Party Applications”), and your use of these Third Party Applications is subject to their terms of use. You understand and agree that Fitsmind is not responsible or liable for the behavior, features, or content of any Third Party Application.

6. User generated content

Fitsmind users may post, upload and/or contribute (“post”) content to the Service, including pictures and text (“User Content”). You represent that you have the right to post any User Content which you post to the Service, and that such User Content, or its use by us as contemplated by this Agreement, does not violate these Agreements, applicable law, or the intellectual property rights of others. You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any User Content that you post on or in connection with Fitsmind. This license lasts until you terminate your Fitsmind account, except in the case of User Content that you have published, made public and/or share with others. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content that you post to the Fitsmind Service, except that, where applicable under Local Country law, you agree to waive your right to be identified as the author of any User Content on the Fitsmind Service and your right to object to derogatory treatment of such User Content.

Fitsmind does not monitor, review, or edit User Content, but reserves the right to remove or disable access to any User Content for any or no reason, including but not limited to, User Content that, in Fitsmind's sole discretion, violates these Agreements. Fitsmind may take these actions without prior notification to you. Removal or disabling of access to User Content shall be at our sole discretion, and we do not promise to remove or disable access to any specific User Content.

Fitsmind is not responsible for User Content nor does it endorse any opinion contained in User Content. If you believe that any User Content infringes your intellectual property rights, please let us know at support@fitsmind.com, or if you believe that any User Content does not comply with the User Guidelines (Section 8 below) or that your rights under applicable law have been otherwise infringed by any User Content, please contact us at support@fitsmind.com

7. Consideration

In consideration for the rights granted to you under these Terms, you grant us the right (a) to allow the Fitsmind Service to use the processor, bandwidth and storage hardware on your Device in order to facilitate the operation of the Service, (b) to provide advertising and other information to you, if you subscribe to the Free Service, and (c) to allow our business partners to do the same.

You grant Fitsmind a non-exclusive, transferable, sub-licensable, royalty-free, perpetual, worldwide licence to use, reproduce, make available to the public, publish, translate and distribute any User Content that you post on or otherwise provide through the Fitsmind Service.

These Terms are not intended to grant rights to anyone except you and Fitsmind, and in no event shall these Terms create any third party beneficiary rights. Any failure by Fitsmind to enforce these Terms or any provision thereof shall not waive Fitsmind's right to do so.

8. User Guidelines

We’ve established a few ground rules for you to follow when using the Service, to make sure Fitsmind stays enjoyable for everyone. Please follow these rules and encourage other users to do the same.

Fitsmind respects intellectual property rights and expects you to do the same. This means, for example, that the following is not permitted: (a) Copying, reproducing, recording, or making available to the public any part of the Fitsmind Services or content delivered to you via the Fitsmind Services, or otherwise any making use of the Fitsmind Service which is not expressly permitted under these Terms; (b) reverse-engineering, decompiling, disassembling, modification or creating derivative works based on the Fitsmind Services or any part thereof; (c) circumventing any technology used by Fitsmind, its licensors, or any third party to protect content accessible through the Service; (d) renting or leasing of any part of the Services; (e) circumventing of any territorial restrictions applied by Fitsmind; (f) removing or altering any copyright, trademark or other intellectual property notices contained on or provided through the Fitsmind Service; (i) providing your password to any other person or using any other person’s user name and password.

Please respect Fitsmind and other users of the Fitsmind Service. Don’t engage in any activity on the Service or upload User Content, including registering and/or using a username, which is or includes material that (a) is offensive, abusive, defamatory, pornographic or obscene; (b) is illegal, or intended to promote or commit an illegal act of any kind, including but not limited to, violations of intellectual property rights, privacy rights or proprietary rights of Fitsmind or a third party; (c) includes personal data of third parties or is intended to solicit such personal data, (d) includes malicious content such as malware, trojan horses or viruses, or otherwise interferes with any user’s access to the Service; (e) is intended or does harass or bully other users; (f) impersonates or misrepresents your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading; (g) uses automated means to artificially promote content; (h) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letter, or similar, including through the Fitsmind inbox; (i) involves commercial or sales activities, such as advertising, contests, sweepstakes, or pyramid schemes; (j) promotes commercial products or services; (k) interferes with the Fitsmind Service, tampers with or attempts to probe, scan, or test for vulnerabilities in the Service or Fitsmind's computer systems or network, or breaches any of Fitsmind's security or authentication measures, or (l) conflicts with the Agreement, as determined by Fitsmind. You agree that Fitsmind may also reclaim your username for any reason.

Please be thoughtful about what you make public on Fitsmind. The Fitsmind Service includes social and interactive features, including the ability to post User Content, share content, and make certain information about you public, as further described in your account settings. Remember that shared or publicly available information may be used and re-shared by other users on Fitsmind or across the web, so please use Fitsmind carefully and manage your account settings regularly. Fitsmind has no responsibility for your choices to make any actions or material public on the Service.

Your password protects your user account, and you are solely responsible for keeping your password confidential and secure. You understand that you are responsible for all use of your username and password on the Service. If your username or password is lost or stolen, or if you believe there has been unauthorized access to your account by third parties, please notify us immediately and change your password as soon as possible.

9. Medical Agreement

The fitness, nutrition, and related information and recommendations provided by Fitsmind are for educational purposes only and are not intended as substitutes for medical advice from your health care provider. Fitsmind is not a medical organization. We encourage and advise you to seek professional medical advice before beginning any fitness or nutrition effort or program. Do not start a diet or fitness routine with us if your healthcare provider advises against it. We cannot provide you with medical advice or diagnosis. Nothing that you may read on this site or that is otherwise provided to you by our staff should be construed as such advice or diagnosis. Such information is not a substitute for physician consultation, evaluation, or treatment. This site is intended for use only by healthy adult individuals.

In becoming a member with the intent of using this Service, you affirm that either (A) all of the following statements are true: (I) no physician has ever informed you that you have a heart condition or that you should only do physical activities recommended by a physician; (II) you have never felt chest pain when engaging in physical activity; (III) you have not experienced chest pain when not engaged in physical activity at any time within the past month; (IV) you have never lost your balance because of dizziness and you have never lost consciousness; (V) you do not have a bone or joint problem that could be made worse by a change in your physical activity; (VI) your physician is not currently prescribing drugs for your blood pressure or heart condition; (VII) you do not have a history of high blood pressure, and no one in your immediate family has a history of high blood pressure or heart problems; and (VIII) you do not know of any other reason you should not exercise; or (B) your physician has specifically approved of your use of Fitsmind.

And if you are a woman, in becoming a member with the intent of using the sites you further affirm that either (A) you are not pregnant, breastfeeding or lactating or (B) your physician has specifically approved your use of Fitsmind.

Fitsmind reserves the right to refuse or cancel your membership if we determine that you have certain medical conditions.

You are advised that health, diet and fitness advice is often subject to change due to medical research and developments. No assurance can be given that the service will reflect the most recent findings or developments with respect to the particular material. You are encouraged to consult with your healthcare provider with any questions or concerns you may have regarding any health condition.

10. Copyright infringement

Fitsmind respects the rights of intellectual property owners. For details on Fitsmind's copyright policy, please email support@fitsmind.com 

11. Technology limitations and modifications

Fitsmind will make reasonable efforts to keep the Fitsmind Service operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. Fitsmind reserves the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Fitsmind Service, with or without notice, all without liability to you for any interruption, modification, or discontinuation of the Fitsmind Service or any function or feature thereof. You understand and agree that Fitsmind has no obligation to maintain, support, upgrade, or update the Service, or to provide all or any specific content through the Service.

12. Export control

Fitsmind's products may be subject to U.S. export and reexport control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. You warrant that you are (1) not located in Cuba, Iran, North Korea, Sudan, or Syria, and (2) are not a denied party as specified in the regulations listed above.

You agree to comply with all applicable export and reexport control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Specifically, you agree that you shall not – directly or indirectly – sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from Fitsmind under these Agreements to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. This export control clause shall survive termination or cancellation of these Agreements.

13. Payments, cancellations and cooling off

If you reside in a Local Country which is part of the European Union and have purchased a Paid Subscription, you have the right to change your mind and receive a full refund within fourteen (14) days of purchase (the “Cooling-off Period”), but only if you have not logged in or otherwise redeemed or started to consume them. The contract can be canceled by sending timely notification to: support@fitsmind.com

If you have a Paid Subscription, your payment to Fitsmind will automatically renew at the end of the subscription period, unless you cancel your Paid Subscription through your subscription page before the end of the current subscription period. The cancellation will take effect the day after the last day of the current subscription period, and you will be downgraded to the Free Service. However, if you cancel your payment and/or terminate the Terms after the Cooling-off Period is over (where applicable), and/or before the end of the subscription period, we will not refund any subscription fees already paid to us.

Fitsmind may change the price for the Paid Subscriptions from time to time, and will communicate any price changes to you. Price changes for Paid Subscriptions will take effect at the start of the next subscription period following the date of the price change. By continuing to use the Fitsmind Service after the price change takes effect, you accept the new price.

All registered users can upgrade their free membership by buying a Premium 2-Month Service (“Coach”) that unlocks training instructions and communication with a Personal Trainer for a limited time period. The fee for the Coach is binding. Payments for the entire term of a Coach shall be due immediately upon invoicing. Payment can be made using the available online payment systems. If Fitsmind is unable to collect any fees from an account designated by the User due to lack of funds, the User shall bear all costs arising there from, including bank charges related to any debit entries or similar charges, insofar as the User is responsible for the event that triggers these costs. Fitsmind may deliver invoices and payment reminders to the User by email. If you have a Paid Subscription, your payment to Fitsmind will automatically renew at the end of a period.

14. Term and termination

These Terms will continue to apply to you until terminated by either you or Fitsmind. Fitsmind may terminate the Terms or suspend your access to the Fitsmind Service at any time, including in the event of your actual or suspected unauthorised use of the Fitsmind Service or non-compliance with the Terms. If you or Fitsmind terminate the Terms, or if Fitsmind suspends your access to the Fitsmind Service, you agree that Fitsmind shall have no liability or responsibility to you and Fitsmind will not refund any amounts that you have already paid, to the fullest extent permitted under applicable law. To learn how to terminate your Fitsmind account, please contact us through the Customer Service contact form.

15. Warranty

We endeavor to provide the best service we can, but you understand and agree that THE FITSMIND SERVICE IS PROVIDED “AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTY OR CONDITION OF ANY KIND. YOU USE THE FITSMIND SERVICE AT YOUR OWN RISK. FITSMIND DISCLAIMS ANY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. In addition, Fitsmind does not warrant, endorse, guarantee or assume responsibility for any Third Party Applications, Third Party Application content, User Content, or any other product or service advertised or offered by a third party on or through the Fitsmind Service or any hyperlinked website, or featured in any banner or other advertising. You understand and agree that Fitsmind is not responsible or liable for any transaction between you and third-party providers of Third Party Applications or products or services advertised on or through the Fitsmind Service. As with any purchase of a product or service through any medium or in any environment, you should use your judgment and exercise caution where appropriate. No advice or information whether oral or in writing obtained by you from Fitsmind shall create any warranty on behalf of Fitsmind in this regard. Some aspects of this section may not apply in some jurisdictions.

The Website and App is provided “as is”. Fitsmind and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither Fitsmind nor its suppliers and licensors, makes any warranty that the Website will be error free or that access thereto will be continuous or uninterrupted. You understand that you download from, or otherwise obtain content or services through, the website or apps at your own discretion and risk. The use of any software or hardware offered by Fitsmind is no substitute for the consultation by the user of a specialized doctor.

16. Limitation

You agree that, to the extent permitted by applicable law, your sole and exclusive remedy for any problems or dissatisfaction with the Fitsmind Service, the Third Party Applications or the Third Party Application content is to uninstall any Fitsmind software and to stop using the Fitsmind Service, the Third Party Applications or the Third Party Application content.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL FITSMIND, ITS OFFICERS, SHAREHOLDERS, EMPLOYEES, AGENTS, DIRECTORS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, SUPPLIERS OR LICENSORS BE LIABLE FOR (i) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, ARISING OUT OF THE USE OR INABILITY TO USE THE FITSMIND SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT, REGARDLESS OF LEGAL THEORY, WITHOUT REGARD TO WHETHER FITSMIND HAS BEEN WARNED OF THE POSSIBILITY OF THOSE DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE; (ii) AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE FITSMIND SERVICE, THIRD PARTY APPLICATIONS OR THIRD PARTY APPLICATION CONTENT MORE THAN THE AMOUNTS PAID BY YOU TO FITSMIND DURING THE PRIOR THREE MONTHS IN QUESTION.

Nothing in these Agreements removes or limits Fitsmind's liability for fraud, fraudulent misrepresentation, death or personal injury caused by its negligence. Some aspects of this section may not apply in some jurisdictions.

17. Entire agreement

These Agreements constitute all the terms and conditions agreed upon between you and Fitsmind and supersede any prior agreements in relation to the subject matter of these Agreements, whether written or oral. Any additional or different terms or conditions in relation to the subject matter of the Agreements in any written or oral communication from you to Fitsmind are void. You represent that you have not accepted the Agreements in reliance on any oral or written representations made by Fitsmind that are not contained in the Agreements.

Please note, however, that other aspects of your use of the Fitsmind Service may be governed by additional agreements. That could include, for example, access to the Fitsmind Community for customer support, access to the Fitsmind Service as a result of a gift card, or free or discounted Trials. You will agree to separate terms and conditions in those circumstances. Those terms and conditions shall govern only with regard to the aspect of the Service to which they apply, and are distinct from and supplemental to these Agreements, and do not supersede these Agreements. To the extent that there is any conflict between those agreements and these Agreements, these Agreements shall control, except as otherwise provided in these Terms.

Occasionally we may offer you the chance to participate in sweepstakes, contests, and surveys (“Special Promotions”) through the Service. Special Promotions may be governed by terms and conditions that are separate from these Terms. If the provisions of a Special Promotion’s terms and conditions conflict with these Terms, those separate terms and conditions shall prevail.

18. Severability

Should any provision of the Terms be held invalid or unenforceable for any reason or to any extent, such invalidity or enforceability shall not in any manner affect or render invalid or unenforceable the remaining provisions of the Terms, and the application of that provision shall be enforced to the extent permitted by law.

19. Choice of law, mandatory arbitration and venue

Unless otherwise required by a mandatory law of a member state of the European Union or any other jurisdiction, these Agreements are subject to the laws of Guernsey, without regard to choice or conflicts of law principles. Further, you and Fitsmind agree to the exclusive jurisdiction of the courts of Guernsey to resolve any dispute, claim or controversy that arises in connection with these Agreements.

If you are a United States user, the following mandatory arbitration provisions also apply to you:

You and Fitsmind agree that any dispute, claim or controversy arising out of or relating in any way to the Fitsmind Service or your use thereof, including our Agreements, shall be determined by mandatory binding arbitration. You agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Fitsmind are each waiving the right to a trial by jury and the right to participate in a class or multi-party action. This arbitration provision shall survive termination of these Agreements and the termination of your Fitsmind account. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (the “AAA Rules”), as modified by these Agreements, and as administered by the AAA. You and Fitsmind agree that these Agreements involve interstate commerce and are subject to the Federal Arbitration Act.

You and Fitsmind agree that (a) any claims seeking to enforce, protect, or determine the validity or ownership of any intellectual property rights, and (b) any claims related to allegations of theft or unauthorized use of the Fitsmind Service are NOT subject to mandatory arbitration. Instead, you and Fitsmind agree that these claims (including but not limited to claims for injunctive or equitable relief) shall be exclusively decided by courts of competent jurisdiction in San Francisco County, California or New York, New York, and that applicable California and/or Federal law shall govern, without regard to choice of law principles.

YOU AND FITSMIND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A CLASS MEMBER OR IN ANY REPRESENTATIVE CAPACITY OR PROCEEDING. Further, no arbitrator shall consolidate any other person’s claims with your claims, and may not otherwise preside over any form of a multi-party or class proceeding. If this specific provision is found to be unenforceable in any way, then the entirety of this arbitration section shall be null and void. The arbitrator may not award declaratory or injunctive relief.

Any arbitration must be commenced by filing a demand for arbitration with the AAA within ONE (1) YEAR after the date the party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim; and there shall be no right to any remedy for any claim not asserted within that time period. If applicable law prohibits a one-year limitations period for asserting claims, any claim must be asserted within the shortest time period permitted by applicable law. Your arbitration fees and your share of arbitrator compensation will be limited to those fees set forth in the AAA's Consumer Rules with the remainder paid by Fitsmind. Any arbitration costs or fees deemed “excessive” will be paid by Fitsmind.

Last updated: April, 2017

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