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TERMS AND CONDITIONS

THESE TERMS AND CONIDITIONS ("Agreement") and the Privacy Policy (“Privacy Policy”) constitute a binding agreement between you ("Customer" or "you") and BIOMEFIT, LLC, a Florida limited liability company ("Company" or “us/we”). This Agreement governs your use of the Company website located at www.mybiomefit.com (the “Site”), the Company mobile application (“Application”), and the Company Offerings described below (the Site, Application, and subscription, collectively referred to as the “Services”). Please read this Agreement carefully.

BY PAYING MEMBERSHIP OR OTHER FEES, CLICKING THE "AGREE" BUTTON, OR USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES.

To register with and use the Services, you must be 18 years or older and/or be of legal age in your jurisdiction of residence, or be between the age of 13 and 17 and obtain the express permission of your parent or legal guardian. If you are under the age of 13, you are not permitted to use any of the Services or submit any personally identifiable information to the Company.

  1. Privacy Policy

By agreeing to this Agreement, you agree to the terms of our Privacy Policy, which is incorporated herein by reference. Before using the Services, please read through this Agreement and Privacy Policy carefully. All personal information provided to us as a result of your use of the Services will be handled in accordance with our Privacy Policy.

  1. Services 

    1. Company Platform. The Company platform enables you to reserve, schedule, purchase, access and attend a wide range of fitness, recreational and wellness classes offered and operated by Company (“Offerings”). There are a number of ways to participate in the Services, such as various subscription plans, promotional plans, and non-subscription purchases. These options consist of different classes, services and features and may be subject to additional and differing conditions, prices, policies and limitations. We reserve the right to modify, terminate or otherwise amend our offered options and plans at any time in our discretion. From time to time we may permit non-subscribers to access certain Services, classes, content or features for a cost or at no cost. Company makes no commitment on the quantity, availability, type or frequency at which such Services, classes, content and features will be available to non-subscribers and may modify, discontinue, remove or suspend access at any time and for any reason in our sole discretion.

    2. Availability and Scheduling. The exact number and type of Services you take will depend on your membership plan. You may schedule for a class up to one (1) week in advance of the class date. You are responsible for canceling your reservation to a class you are not able to attend, as such, any cancellation received within eight (8) hours of the scheduled class will incur a late cancellation fee to be determined by the Company. 

    3. Non-Subscription Purchases. Company may permit you to purchase certain products or Services in addition to your membership or without having a membership. You acknowledge and agree that these Terms apply to any such purchase you make, and you will be responsible to pay the applicable fees, which may change at any time.

    4. Account Registration. You may be required to create an account in order to use all or part of the Services. If you register an account, you agree: (a) to provide accurate, complete, and current information as prompted by the registration forms; (b) to keep such information up-to-date in your account page, including any credit card numbers and expiration dates; (c) to keep your account information, including your password, secure and confidential; (d) to notify Company immediately if you learn of any unauthorized access or use of your account or password or any other known or suspected breach of security related to your account; (e) you will be responsible for all activity that occurs under your account, including from unauthorized access; (f) you may not share your account, username, or password with a third party or use the account, username, or password of another account holder; (g) when logging on to the Services, to only use the Services as permitted under this Agreement.

    5. Ownership of Content. Unless otherwise indicated, the content of the Services, including, but not limited to, all information, the design, text, images, graphics, audio clips, video clips, metadata, data, selection and arrangement of elements, organization, and the design, compilation, and other matters related to the Services (collectively, "Content") and the source and object code, format, algorithm, and structure of the Application are protected under applicable intellectual property and other laws. All Content and intellectual property rights herein are the property of the Company or used with the permission of the rights owner and are protected pursuant to applicable intellectual property laws. The posting of any Content on the Services does not constitute a waiver of any right in such Content. The reproduction, duplication, distribution (including by way of email or other electronic means), publication (including posting on another website) modification, copying or transmission of Content from the Application or the Site in any form or by any means is strictly prohibited without the express prior written consent of Company. If approved, the Content may only be used for personal, non-commercial purposes.

    6. Company Mark. The Company logo and all page headers, custom graphics, button icons, trademarks, service marks and logos appearing in the Application or the Site, unless otherwise noted, are service marks, trademarks (whether registered or not) and/or trade dress of Company (the "Marks"). You are not authorized to display or use the Marks in any manner without the express prior written consent of the Company. The use or misuse of the Marks or other trademarks, names, logos, service marks and/or trade dress or any other materials contained herein, except as permitted herein, is expressly prohibited. All other product and company names and trademarks mentioned, displayed, cited or otherwise indicated on the Site or in the Application are the property of their respective owners.

    7. License Grant. Subject to your compliance with the requirements and restrictions of this Agreement, and STRICTLY FOR YOUR PERSONAL, NON-COMMERCIAL USE, we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable, non-assignable, license to (a) access and use the Services and to view the Content, and (b) to download and install the Application on a device you own or are authorized to use. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions under this Agreement.

  2. Prices and Payment

    1. Payment Terms. Customer shall pay to Company fees for the Services in accordance with terms of this Agreement (“Fees”). Except as otherwise specified herein, (a) Fees are based on the Services licensed and not actual usage, and (b) all payment obligations under this Agreement are non-refundable. All amounts payable by Customer are exclusive of any taxes, fees, duties, shipping, or other charges, however designated, now or hereafter levied. Customer will be responsible for all taxes, fees, duties, shipping or other such charges under this Agreement. Customer agrees to be responsible for payment for all activity by third parties who access or use the Services through Customer’s account regardless of whether such activity was authorized by Customer or not. Customer is responsible for all incidental charges related to their use of the Services such as charges for Internet access, third party software licenses, text messaging, or other data transmission.

    2. Payment method; Credit Card Authorization. For payment of the Services, Customer hereby authorizes Company to automatically charge Customer’s credit card or bank account on file until either Customer or Company terminates this Agreement or cancels the Services. Once a payment has been made, it is non-refundable. Customer is responsible for providing Company with its most current billing information. Fees will appear on an invoice, which will be sent to the Customer via the email provided when charging occurs. Customers have approximately two weeks to bring up and settle any issues with the billing of Fees.

    3. Price Changes. We reserve the right to make changes to the price, frequency, or date of charge. If the cost of your Fee increases, you will be provided with written notice prior to the billing period in which the change will become effective and you must opt into the price increase in order to continue to have access to the Services following the end of your current billing period.

    4. Promotions. Promotions for the Services may be authorized by Company from time to time, in its sole discretion, to Customers. Such promotions shall be reflected on the purchase order on the Website, Application, and in invoices.

    5. Freeze Membership. Upon providing Company with notice, you may freeze your membership account for a minimum of two-weeks and a maximum of sixty days, which freeze period may not exceed 90 days within a six-month period. To freeze an account, you must email Company with the specified start and end dates for the freeze, at least five days prior to the desired start date. Billing charges are non-refundable if the freeze request is not submitted prior to the billing date.

    6. Cancellation. Within five (5) business days of your acceptance of this Agreement, you may cancel the Services and this Agreement by notifying the Company in writing, and all amounts paid will be returned to you. You may further cancel your membership (i) three (3) months after your acceptance of this Agreement, provided that five (5) days written notice is provided to the Company prior to the next billing cycle; or (ii) you move more than 25 miles away from the Company’s business location, become deceased, or suffer a disabling condition. If you cancel your subscription prior to the end of your membership period, you will be entitled to continue to access your membership through to the end of your current membership period. At the end of your membership period, you will immediately lose all access to the Services. Please see our “No Refunds” policy below in Section 4.6.

    7. No Refunds. While you may cancel your membership at any time, we do not offer refunds or credits, except in our sole discretion, or as required by applicable laws. If we do issue a refund or credit, we are under no obligation to offer similar refunds or credits in the future.

  3. Term and Termination

The term of Agreement commences when you acknowledge your acceptance of this Agreement and will continue in effect until terminated by you or Company as set forth in this Section. Company may terminate this Agreement at any time without notice, including if Company ceases to support the Services, which Company may do in its sole discretion, or upon the Customers failure to pay the Fees. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

Upon termination, all rights granted to you under this Agreement will also terminate. Termination of this Agreement will not limit any of Company's rights or remedies at law or in equity.

  1. Changes to Terms

We reserve the right to modify or amend this Agreement without notice at any time. The latest Agreement will be accessible through the Application and posted on the Site, and you should always review this Agreement prior to using the Services to ensure that you have a current understanding of this Agreement under which you are permitted to access the Services. If we make material modifications or amendments to this Agreement, we will notify you by reasonable means which could include notification through the Services or by direct communication to you via email or your account. Use by you of the Services following any modifications or amendments to this Agreement shall signify your acceptance of such modifications or amendments.

  1. Collection and Use of Your Information

You acknowledge that when you use the Services, Company may use automatic means (including, for example, cookies and web beacons) to collect information about your device and about your use of the Services. You also may be required to provide certain information about yourself as a condition to using the Services or certain of its features or functionality. All information we collect through or in connection with the Services is subject to our Privacy Policy. By using, and providing information to the Company through the Services, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

Except for (i) personally identifiable information such as names, addresses, and financial information and (ii) information you submit in relation to an employment application, by submitting unsolicited information and content through the Services, you grant Company and each of its respective licensees, successors, and assigns a non-exclusive, worldwide, perpetual, fully-paid and royalty free license (with the right to sublicense) to store, use, copy, reproduce, modify, publicly perform, display, distribute, adapt, and create derivate works of, and to promote, market, and exploit such submission. By sending any unsolicited submission to us, you waive the right to make any claim against Company, its parents or affiliates related to use of the submission, including any claim of “moral rights” or attribution.

By uploading or submitting any content you represent and warrant that you own or have the necessary rights or licenses to submit such content. You also represent and warrant that any uploaded material does not:

  • infringe any copyright or other intellectual property or other rights of any other person or entity;

  • contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable; promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;

  • violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with this Agreement or our Privacy Policy;

  • promote any illegal activity, or advocate, promote, or assist any unlawful act;

  • involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter, or advertising;

  • give the impression that the content emanates from or is endorsed by Company or any other person or entity, if this is not the case.

We, in our sole discretion, reserve the right to monitor, remove, or edit any user content for any or no reason at any time. We may disclose your identity or other information about you to any third party who claims that user content submitted by you violates their legal rights, including intellectual property or privacy rights. We may take appropriate legal action, including referral to law enforcement authorities, for any illegal or unauthorized use of the Services. We have the right to cooperate with any law enforcement authorities or court orders requesting or directing us to disclose the identity or any other information of anyone posting materials on or through the Services. YOU WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY IN RESPONSE TO AN INVESTIGATION BY LAW ENFORCEMENT AUTHORITIES OR AS A CONSEQUENCE OF COMPANY’S ACTIVITIES INTENDED TO COMPLY WITH LAW OR REGULATIONS.

  1. Third-Party Materials 

The Services may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Company is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Company does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

  1. Disclaimer of Warranties 

THE APPLICATION IS PROVIDED TO CUSTOMER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SERVICES, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU. 

  1. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE SERVICES AND SERVICES FOR:

    1. PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

    2. DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION. 

THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. 

  1. Mobile Networks

If you access the Services through a mobile network, or signup to receive text messages, your mobile network provider’s messaging, data, and other rates and fees may apply. We shall have no responsibility or liability for any data fees you incur through your use of the Services. Some features of the Services may be restricted by or may be incompatible with your mobile network or device.

  1. Notice About Fitness Content

    1. Health Warning. The health and fitness content provided through the Services is designed for educational and informational purposes only and is not intended to be, nor does it constitute, medical or other professional healthcare advice. We strongly recommend that you consult with your physician before beginning any exercise program. It is your responsibility to evaluate your own medical and physical condition to determine whether to participate in an exercise program. Always check your surroundings before exercising. If you experience faintness, dizziness, pain or shortness of breath at any time while exercising you should stop immediately.  You represent and warrant that you are in good physical condition and have no medical reason or impairment that might prevent you from your intended use of the Services.

    2. Assumption of Risk. You understand and expressly agree that there are risks inherent in physical activity and your use of the Services may involve potentially dangerous physical activities that may lead to minor injuries or major injuries, up to and including death. In consideration for your use of the Services, you understand and voluntarily accept full responsibility for the risk of injury or loss arising out of or related to your use of the Services. You further agree that Company, and its respective affiliated companies, parents, subsidiaries, and franchisees, together with officers, directors, shareholders, employees, agents, and independent contractors of all such entities (collectively, the “Released Parties”)  will not be liable for any injury including, without limitation, personal, bodily, or mental injury, disability, death, economic loss or any damage to you, your spouse or domestic partner, unborn child, heirs, or relatives resulting from the negligent conduct or omission of any member of the Released Parties or anyone acting on their behalf, whether related to exercise or not.

  2. Release; Indemnification

To the fullest extent permitted by law, you hereby forever release, waive and discharge each member of the Released Parties from any and all claims, demands, injuries, damages, actions or causes of action related to your use of the Services, any content you submit, post to, or transmit through the Services, or your breach or alleged breach of this Agreement (collectively, “Claims”) against any member of the Release Parties, or anyone acting on their behalf.  Further, you hereby agree to defend, indemnify and hold harmless each member of the Released Parties from and against all liabilities, claims, damages and expenses (including reasonable attorney’s fees and costs) arising from or related to any such Claims. If you live in a jurisdiction that does not allow for the waiver of liability, the above waiver of liability does not apply to you.

  1. Miscellaneous

    1. Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

    2. Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Tampa and Hillsborough County. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts. 

    3. Geographic Restrictions. The Software and Services are based in the state of Florida in the United States and provided for access and use only by persons located in the United States. You acknowledge that you may not be able to access all or some of the Software and Services outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the Software and Services from outside the United States, you are responsible for compliance with local laws.

    4. Arbitration. The Parties agree that any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, or arising out of or relating to the Agreement, or the termination thereof, including any claims under federal, state, or local law, shall be resolved by binding arbitration administered by a single arbitrator of the American Arbitration Association (“AAA”). The seat of any such arbitration will be Hillsborough County, Florida, or a location determined by the mutual written consent of both Parties.  The Parties agree that any award rendered by the arbitrator shall be final and binding, and that judgment upon the award may be entered in any court having jurisdiction thereof.  The Parties agree that any such arbitration shall be conducted pursuant to the then current Streamlined Commercial Arbitration Rules, and judgment upon the award may be entered in any court having jurisdiction thereof.  The arbitration will be based on the submission of documents and there shall be no in-person or oral hearing.  In the event of a dispute between the Parties, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs incurred prior to and during any litigation or arbitration proceedings including interest from the date said fees and costs were advanced by the prevailing Party at the rate of ten percent (10%) per annum.

    5. Entire Agreement. This Agreement and our Privacy Policy constitute the entire agreement between you and Company with respect to the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services. 

    6. Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern. 

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