These Terms & Conditions apply to the 1% Fitness application including, without limitation, 1% Fitness’s iOS app, Android app or web app (collectively, the “App”). As used in these Terms & Conditions, “1% Fitness”, “us”, or “we” refers to 1 PERCENT FITNESS, LLC and its subsidiaries and affiliates.
BY ACCESSING OR OTHERWISE USING THE APP, YOU AGREE TO THESE TERMS & CONDITIONS IN THEIR ENTIRETY. Any person or entity who interacts with the App through the use of crawlers, robots, browsers, data mining or extraction tools, or other functionality, whether such functionality is installed or placed by such person or entity or a third party, is deemed to be using the App and bound by these Terms & Conditions. If at any time you do not accept all of these Terms & Conditions, you must immediately stop using all or any part of the App.
If you place an order through the App, you are responsible for ensuring that your order is correct and you have designated the proper store for pick-up or address for delivery. You may only place orders if you are at least 18 years old
You may cancel your order up to 48 hours before pick-up and delivery. After cancellation window, you will be charged a $50.00 cancellation fee for your order. If you do not cancel and do not pick up your order, you will be charged in full for that order.
We will attempt to deliver your order as soon as possible. We reserve the right not to deliver: outside our designated delivery times; outside our delivery zone; in inclement weather or dangerous driving conditions; to minors; to customers in public establishments; or in those instances in which we believe our delivery would conflict with, compromise or affect our business. If we are unable to deliver your order because you provided an inaccurate address, you will be charged for your order, even if we are unable to deliver your order. If you request that your order be left at your door or another location, you will be charged, and we will have no further liability, for any delivery left in the specified location. If you request that your order be delivered to you personally and we are unable to locate you at the address provided, we will attempt to contact you by phone or SMS. If you are not at the designated location at the time of delivery and we are unable to contact you, you will be charged for your order.
If you order an item that is not in stock, we will attempt to contact you to provide you with an opportunity to designate a replacement item. If a replacement item is not designated, the original item will be removed from your order and you will not be charged for it. If none of the items in your order are available, we will attempt to contact you to let you know that your order is being cancelled.
All rights, title and interest in the App, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to 1% Fitness or its licensors. Nothing in these Terms & Conditions or otherwise will be deemed to grant to you an ownership interest in the App, in whole or in part.
All content included on the App, such as recipes, meal planners, guides, shopping lists, sales flyers, text, graphics, logos, images, button icons, audio clips, video, photographs, data, music, software, and other material (collectively “Content”) is owned or licensed property of 1% Fitness or its licensors and is protected by copyright, trademark, patent, trade secret or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and 1% Fitness owns a copyright in the selection, coordination, arrangement and enhancement thereof.
1% Fitness grants you a limited license to access and make personal use of the App and the Content for NONCOMMERCIAL PURPOSES ONLY and only to the extent such use does not violate these Terms & Conditions including, without limitation, the prohibitions listed in the “UNLAWFUL OR PROHIBITED USES” section of these Terms & Conditions. You may download, print, and copy Content for personal, noncommercial purposes only, provided you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms & Conditions in any way. Accessing, downloading, printing, posting, storing, or otherwise using the App or any of the Content for any commercial purpose, whether on behalf of yourself or on behalf of any third party, constitutes a material breach of these Terms & Conditions.
1% FITNESS and the 1% FITNESS logos and other related marks, design marks, product names, feature names and related logos used in the App are trademarks of 1% Fitness and may not be used, copied, or imitated, in whole or in part, without the express prior written permission of 1% Fitness. In addition, the look and feel of the App constitutes the service mark, trademark and/or trade dress of 1% Fitness and may not be copied imitated or used, in whole or in part, without the express prior written permission of 1% Fitness. 1% Fitness’s trademarks and trade dress may not be used in connection with any product or service in any manner that is likely to cause confusion among customers, or in any manner that disparages 1% Fitness or suggests a sponsorship, affiliation or endorsement by 1% Fitness.
All other trademarks, service marks, logos, slogans, domain names and trade names are the properties of their respective owners.
The App may only be used for lawful purposes in accordance with the terms of the license granted in these Terms & Conditions. As a condition of your use of this App, you warrant to 1% Fitness that you will not use the App for any purpose that is unlawful or prohibited by these Terms & Conditions. Whether on behalf of yourself or on behalf of any third party, unless you have the express prior written consent of 1% Fitness, YOU MAY NOT:
You may be required to register with 1% Fitness in order to access certain services or areas of the App. If you are required to register with 1% Fitness, we may not be able, or we may refuse, to provide you with the user name you request. Your user name and password are for your personal use only. If you use the App, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer and mobile device, and you agree to accept responsibility for all activities that occur under your account or password. In addition to all other rights available to 1% Fitness including those set forth in these Terms & Conditions, 1% Fitness reserves the right, in its sole discretion, to terminate your account, refuse service to you, or cancel orders.
If the App includes push notifications or other mobile communication capability, you hereby approve our delivery of electronic communications directly to your mobile device. These notifications may include information regarding your order, such as a confirmation of our receipt of your order, the status of the delivery, or a notice that your order has been delayed or cancelled. The notifications may be in the form of badge, alert or pop-up messages, and may be delivered to your device even when the App is running in the background. You have the ability, and it is your responsibility, to control the notifications you do, or do not, receive through your device.
1% Fitness may at any time: (i) modify or discontinue any part of the App; or (ii) offer opportunities to some or all App users. 1% Fitness reserves the right to make changes to these Terms & Conditions at any time. Each time you use the App, you should review the current Terms & Conditions. You can determine when these Terms & Conditions were last revised by referring to the “LAST UPDATED” legend at the bottom of these Terms & Conditions. Your continued use of the App will indicate your acceptance of the current Terms & Conditions; however, any material change to these Terms & Conditions after your last usage of the App will not be applied retroactively. Except for such material changes, the Terms & Conditions that were in effect at the time any claim or dispute arose between you and us will be applied.
1% Fitness reserves the right, without notice and in its sole discretion, to terminate your account or your use of the App and to block or prevent future access to and use of the App (i) if you violate any of these Terms & Conditions, (ii) for any other reason, or (iii) for no reason. Upon any such termination, your right to use the App will cease.
You agree that we shall not be liable to you or any third party for any termination of your access to the App. Upon termination, all provisions of these Terms & Conditions which are by their nature intended to survive termination, and all representations and warranties, all limitations of liability, and all indemnities, shall survive such termination.
If the App allows you to submit reviews, comments, and other communications, photos, videos, or any other content (“User Content”) through or to the App, 1% Fitness welcomes such User Content as long as the User Content submitted by you complies with these Terms & Conditions.
You agree that any User Content that you submit: (i) will be accurate; (ii) will not violate or facilitate the violation of any law or regulation; (iii) will not violate any right of a third party, including copyright, trademark, privacy, or publicity rights; (iv) will not cause injury to any person or entity; and (v) will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading. You are solely responsible for the User Content you submit, and 1% Fitness assumes no liability for any User Content submitted by you. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion: (i) monitor User Content; (ii) alter, remove, or refuse to post or allow to be posted any User Content; and/or (iii) disclose any User Content, and the circumstances surrounding its transmission, to any third party including, without limitation, a Deliver Service.
For any User Content you submit, you grant to 1% Fitness a non-exclusive, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free, transferable right and license to use, display, perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell and distribute such User Content and to incorporate the User Content into any form, medium, or technology, now known or hereafter developed, throughout the world, all without compensation to you. For this reason, do not send us any User Content that you do not wish to license to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, you grant to 1% Fitness the right, without any obligation, to include the name provided along with the User Content submitted by you. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory.
Content is also provided by third party visitors to the App. Please note that visitors to the App may post content that is inaccurate, misleading, or deceptive. 1% Fitness neither endorses nor is responsible for any opinion, advice, information, or statements made by third parties. 1% Fitness will not be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed by third parties reflect solely the opinions of the parties who submitted such opinions and may not reflect the opinions of 1% Fitness.
1% Fitness’s policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found on the App can be identified and removed using the process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide 1% Fitness’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying 1% Fitness that your copyrighted material has been infringed. 1% Fitness does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, 1% Fitness will respond by either taking down the allegedly infringing content or blocking access to it. 1% Fitness may contact the notice provider to request additional information. Under the DMCA, 1% Fitness is required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send 1% Fitness a counter-notification. Notices and counter-notices are legal notices distinct from regular App activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.
The App may contain links and interactive functionality interacting with third parties, including social media applications and product manufacturers’ applications. 1% Fitness is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms, or content of any such application. Before enabling any sharing functions of the App to communicate with any such application or otherwise visiting any such application, 1% Fitness strongly recommends that you review and understand the terms and conditions, privacy policies, settings, and information-sharing functions of each such third-party application. The links and interactive functionality for third party applications on the App do not constitute an endorsement by 1% Fitness of such third-party application. Other applications may link to the App with or without our authorization, and we may block any links to or from the applications, in our sole discretion. YOUR USE OF THIRD PARTY APPLICATIONS AND RESOURCES IS AT YOUR OWN RISK.
1% Fitness recognizes that the protection of privacy is a major concern to many of our customers and wants you to know how we acquire personal information through the App and how we use, share and protect that information. By using this App, you are consenting to the information collection, use and disclosure practices described below.
We may gather personal information (i) that you give to us voluntarily while using the App (ii) when you purchase, order, return, exchange or request information about our products and services while using the App; (iii) when you participate in interactive features of the App (iv) when you sign up for our e-mails, mobile messages, or social media notifications as described in the section titled “Social Media Notification” below; (v) when you enter a contest or sweepstakes, respond to one of our surveys, or participate in a focus group as described in more detail under the section titled “Surveys and Polls” below; or (vi) when you provide us with comments, suggestions, or other input.
In order for you to receive certain benefits of our App, we may collect personal information about you that is not publicly available and can identify you, such as your name, mailing address, email address and phone number, birth date, and dietary restrictions. We want to supply you with information that benefits you and the more relevant information we have about you, the better we are able to do this.
We distribute an electronic newsletter, personalized content, notifications and recommendations and may launch additional products in the future. When you subscribe to our service, you will be asked for certain information so that we can customize the information you receive to suit your needs. Upon registering for our service, you will be asked for your name, email address, zip code, and other information specified in the enrollment process. You may be asked to tell us a little about your dietary restrictions, and other questions of this nature. This information is used to deliver personalized information that we believe will be of interest to you. The more of this information you choose to share with us, the better we can craft information specifically for you.
To enable our push notification and other mobile communication services, we may collect and store device IDs to identify each unique mobile device that registers for our service, including for example, device tokens from iOS devices, Live IDs from Windows devices, and other similar identifications from devices running on other platforms. These IDs cannot be tracked back to you, but are tied to a specific device which may only be used by one person. We may collect information including location-related information, internet protocol addresses, mobile device models, carrier information, the operating system of your mobile devices and other non-personally identifiable information.
From time to time, users of the App may be asked to participate in voluntary surveys and polls. As a part of this process you may be asked to supply personal information such as demographic information and lifestyle preferences. These surveys will be strictly voluntary and you can choose to disclose this information or not.
We may use information gathered through the App to: (i) fulfill and manage purchases, orders, payments, returns, exchanges and requests for information, including, without limitation, provide your name, address, contact information, including phone number, and information regarding your order to the Delivery Service for use in performing any of the foregoing services; (ii) deliver coupons, mobile coupons, newsletters, in-store messages, emails and mobile messages including, for example, by push notification or other mobile communications; (iii) send marketing communications and other information regarding products, services and promotions; (iv) improve the effectiveness of our App, website, stores, mobile experience and marketing efforts; (v) conduct research and analysis, including focus groups and surveys; (vi) administer sweepstakes and contests; (vii) prevent fraudulent transactions and monitor against theft; and (viii) assist law enforcement and respond to subpoenas.
We will not sell or otherwise share personally identifying information with other people or nonaffiliated companies except for those purposes described above, or as required by law. However, we will share this information with certain business partners, including without limitation, the Delivery Services, to provide requested services that we do not provide directly.
In addition, we may share aggregate data collected through the App that does not personally identify any party with our research partner, and may from time to time share this type of data with other business partners, including the Delivery Services.
Also, we may disclose specific information upon governmental request, in response to a court order, when required by law, or to protect our or others’ rights, property, or safety. We do not provide information to these agencies or companies for marketing or commercial purposes.
Any information you submit in a blog, chat room, social network or other public forum can be read, collected, or used by us and others, including, for example, to personalize your experience on our App. You are responsible for the information you disclose in these forums and such information is not protected under these Terms & Conditions. In addition, we may include links to third party sites through the App. These linked sites have separate and independent privacy policies. We therefore have no responsibility or liability for the content and activities of these linked sites.
Our App may include functionality to allow you to create a shopping list, search or add products to a favorites list, check price or product availability, print coupons and engage in a wide variety of other activities and services. In addition, our App may collect certain information automatically, such as the type of mobile device you use, the temporary or persistent unique device identifiers (sometimes called UDID) placed by us or our service providers, the unique identifier assigned by us to your device, the IP address of your mobile device, your mobile operating system, the type of mobile Internet browsers you use, and information about the way you use our App.
Additionally, our App collects precise information about the location of your device. You must first provide permission through your device before our App obtains such location information from technologies like GPS, Wi-Fi, or cell tower proximity (or a combination of these technologies). We, and our service providers, such as the Delivery Services, may use and store this information, in combination with other location-based information such as the IP address and billing or postal code provided by you at time of your App registration, to provide enhanced location based services, such as store specific services, search results, and other content. You can stop all collection of information by our App easily by uninstalling the App. Also, you may at any time opt-out from further allowing us to have access to your location data by adjusting the permissions in your mobile device.
We understand that you may want to change or access your personal information. You may do so by sending an email to firstname.lastname@example.org requesting to opt-out. In addition, you have the ability to unsubscribe to our newsletter and promotional emails via the opt-out link in the email.
Under California law, California residents who have an established business relationship with us may opt out of our disclosing personal information about them to third parties for marketing purposes. Under California law, third parties include our affiliates. If you do not want us to disclose your personal information to third parties, including our affiliates, please email email@example.com to opt out.
Parents should always supervise their children while online. Our App is not designed nor intended to collect personal information from children under the age of thirteen. So that we may comply with the Children’s Online Privacy Protection Act, we ask that children under the age of thirteen not provide any personal information on this App. If a child under the age of thirteen has provided us with personal information, we ask that a parent or guardian contact us at Info@1percentfit.com.
We have attempted to take all reasonable steps to have physical, electronic and procedural safeguards in place to protect personal information gathered through this App. This includes compliance with related federal regulations and may include use of industry-standard Secure Socket Layer (SSL) encryption to prevent any loss, misuse, unauthorized access, disclosure, or modification of personal information. Unfortunately, no data transmission can be guaranteed to be 100% secure. As a result, while we strive to protect your personal information, we cannot guarantee or warrant the security of any information you transmit to or from our App, and you do so at your own risk.
1% Fitness cannot and does not represent or warrant that the App will be error-free, uninterrupted, free from unauthorized access (including third party hackers or denial of service attacks), or otherwise meet your requirements.
THE APP AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS, SERVICES, AND USER CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE APP (COLLECTIVELY, THE “APP CONTENTS”) ARE PROVIDED BY 1% FITNESS ON AN “AS IS,” “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. 1% FITNESS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE APP, THE ACCURACY OR COMPLETENESS OF THE APP CONTENTS, OR THAT EMAILS SENT FROM 1% FITNESS ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK. 1% FITNESS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE APP OR THE APP CONTENTS INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE AGREED BY 1% FITNESS IN WRITING. TO THE FULL EXTENT PERMITTED BY LAW, 1% FITNESS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE APP AND THE APP CONTENTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
IF PRODUCTS ARE PROVIDED BY THIRD PARTIES, SUCH AS DELIVERY SERVICES, THROUGH THE APP, THOSE THIRD PARTIES MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS AND/OR WARRANTIES REGARDING THEIR PRODUCTS OR SERVICES. THIS DISCLAIMER DOES NOT APPLY TO SUCH PRODUCT OR SERVICE REPRESENTATIONS OR WARRANTIES, BUT ANY SUCH REPRESENTATIONS OR WARRANTIES ARE PROVIDED SOLELY BY SUCH PROVIDER AND NOT BY 1% FITNESS.
IF NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION IS PROVIDED THROUGH THE APP, 1% FITNESS DOES NOT REPRESENT OR WARRANT THAT SUCH INFORMATION IS ACCURATE OR COMPLETE. ON OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS AND UPDATE THEIR LABELS. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON OUR APP AND THAT YOU CONSULT THE PRODUCT’S LABEL OR CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY CONCERN OR QUESTION ABOUT A PRODUCT.
THIRD PARTY NAMES, MARKS, PRODUCTS, ADVERTISEMENTS, OR SERVICES OR POP-UP TEXTS OR LINKS TO THIRD PARTY APPLICATIONS MAY APPEAR ON THE APP. IN NO EVENT WILL 1% FITNESS BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE, OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE APP, ANY PRODUCTS, SERVICES, OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD-PARTY APPLICATION, OR ANY LINK CONTAINED IN A LINKED APPLICATION. IF YOU DECIDE TO LINK TO ANY SUCH THIRD-PARTY APPLICATION, YOU DO SO ENTIRELY AT YOUR OWN RISK.
The App is controlled and operated by 1% Fitness from the United States, and is not intended to subject 1% Fitness to the laws or jurisdiction of any state, country or territory other than that of the United States. 1% Fitness does not represent or warrant that the App or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States. In choosing to access the App, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the App’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
IF THE APP INCLUDES HEALTHCARE OR NUTRITIONAL INFORMATION, THAT INFORMATION IS INTENDED FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT, IT IS NOT A SUBSTITUTE FOR A MEDICAL EXAM, AND IT DOES NOT REPLACE THE NEED FOR SERVICES PROVIDED BY MEDICAL PROFESSIONALS.
We provide information through the App for your information and enjoyment. Your use of the App is strictly voluntary. Because some of the information in the App may relate to modifications to your diet, you agree to use your good judgment and reasonable care prior to making any changes to your lifestyle. By using the App, you assume the risks associated with the activities in which you will be participating. Such risks may include, but are not limited to, the risk of physical injury or other harm. You, and you alone, are solely responsible for taking proper care to limit your risk.
You knowingly and voluntarily do hereby indemnify, release, acquit, waive, forever discharge, and covenant not to sue 1% Fitness, its employees, agents, any related affiliate and/or subsidiary entities from and against any and all liabilities, costs and expenses (including without limitations, any reasonable fees and expenses of its attorneys and consultants) relating to or arising out of any claims, demands or causes of action of every kind and character (including, without limitation, personal injury and property damage claims) as a result of the information and materials offered by 1% Fitness through the App.
UNDER NO CIRCUMSTANCES SHALL 1% FITNESS OR ITS EMPLOYEES, DIRECTORS, OFFICERS, OR AGENTS BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE APP. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT OR TORT, EVEN IF 1% FITNESS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EACH PROVISION OF THESE TERMS & CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN YOU AND 1% FITNESS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND 1% FITNESS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S). IF YOU ARE DISSATISFIED WITH THE APP, ANY CONTENT ON THE APP, OR THESE TERMS & CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE APP. YOU ACKNOWLEDGE, BY YOUR USE OF THE APP, THAT YOUR USE OF THE APP IS AT YOUR SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN.
As a condition of the use of the App, you agree to defend, indemnify, and hold harmless 1% Fitness and its respective employees, directors, officers, agents, vendors, and suppliers from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (each, a “Claim”) arising out of or otherwise relating to your use of the App, including, without limitation, any User Content submitted by you and Claims alleging facts that if true would constitute a breach by you of these Terms & Conditions.
In the case of notices 1% Fitness sends to you, you consent to receive notices and other communications by 1% Fitness including posting notices on the App, sending you an email at the email address listed in your profile in your account, or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures, and other communications that 1% Fitness provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on the App or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, three days after the date of mailing. You agree that a printed version of these Terms & Conditions and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms & Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
YOU AGREE THAT ALL MATTERS RELATING TO YOUR ACCESS TO OR USE OF THE APP AND ALL MATTERS ARISING OUT OF OR RELATED TO THESE TERMS & CONDITIONS, INCLUDING ALL DISPUTES, WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS, UNITED STATES OF AMERICA, WITHOUT REGARD TO TEXAS’ CHOICE OF LAW PRINCIPLES. YOU FURTHERMORE AGREE THAT THE FORUM AND VENUE FOR ANY LEGAL ACTION ARISING OUT OF OR RELATED TO THESE TERMS & CONDITIONS SHALL BE THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, AND YOU SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT. IF SUBJECT MATTER JURISDICTION (INCLUDING DIVERSITY JURISDICTION) DOES NOT EXIST IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS, THEN THE EXCLUSIVE FORUM AND VENUE FOR ANY SUCH ACTION SHALL BE THE COURTS OF THE STATE OF TEXAS LOCATED IN TRAVIS COUNTY, AND YOU SUBMIT TO THE PERSONAL JURISDICTION OF THAT COURT. THE MAKING OF CLAIMS OR RESOLUTION OF DISPUTES PURSUANT TO THIS AGREEMENT SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW: (1) ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE APP AND/OR THESE TERMS & CONDITIONS WILL BE RESOLVED INDIVIDUALLY IN THE FORUM DESIGNATED IN THIS SECTION, WITHOUT RESORT TO ANY FORM OF CLASS ACTION; AND (2) ANY AND ALL CLAIMS, JUDGMENTS, AND AWARDS WILL BE LIMITED TO ACTUAL THIRD-PARTY, OUT-OF-POCKET COSTS INCURRED (IF ANY), BUT IN NO EVENT WILL ATTORNEYS’ FEES BE AWARDED OR RECOVERABLE.
These Terms & Conditions, including policies and information linked from or incorporated herein, constitute the entire agreement between you and 1% Fitness with respect to the App and supersede all prior or contemporaneous communications, agreements, and proposals with respect to the App. No provision of these Terms & Conditions shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of, or delay in exercising any right or remedy under these Terms & Conditions shall operate as a waiver or estoppel of any right, remedy, or condition. If any provision of these Terms & Conditions is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms & Conditions without our express prior written consent. We will not be responsible for failure to fulfill any obligation due to causes beyond our control.
If you have any concerns about 1% Fitness or your use of the App, please contact us at Info@1percentfit.com with a detailed description, and we will try to resolve it.
Last Updated: June 13th, 2017