THESE TERMS AND CONDITIONS CONTAIN A DISPUTE RESOLUTION PROVISION THAT REQUIRES INDIVIDUAL ARBITRATION AND YOU ARE NOT ALLOWED TO BRING YOUR CLAIMS IN COURT, OTHER THAN ON INDIVIDUAL BASIS IN SMALL CLAIMS COURT. PLEASE SEE THE SECTION, “DISPUTE RESOLUTION”.
Collection of Visitor Information
All content, software, and technology included on the Sites or used in the operation of the Sites is the owned or licensed property of Fusion Fitness or its content, software, and technology suppliers, and is protected by U.S. and international copyright laws. The compilation (meaning the collection, arrangement, and assembly) of all content on the Sites is the exclusive property of Fusion Fitness and protected by U.S. and international copyright laws. Fusion Fitness grants you permission to view and use content, software, and technology made available to you on the Sites in connection with your own personal, noncommercial use of the Sites. Any other use, including the reproduction, modification, distribution, transmission, republication, display, or performance, of the content, software, and technology on the Sites is strictly prohibited.
The trademarks, service marks, trade dress, and “look and feel” (the “Trademarks”) used and displayed on the Sites are registered and unregistered Trademarks of Fusion Fitness and others. Nothing on the Sites shall be construed as granting any license or right to use any Trademark displayed on the Sites without the prior written permission of the Trademark owner. Other product and company names mentioned in the Sites may be the Trademarks of their respective owners.
Other Intellectual Property
All other intellectual property rights related to the content, software, and technology included on the Sites or used in the operation of the Sites, including without limitation, patents, trade secrets, trade dress, publicity rights, character rights, titles, and artistic and moral rights are the owned or licensed property of Fusion Fitness. Any use of these rights without the prior written permission of Fusion Fitness is strictly prohibited.
Information on the Sites may contain typographical errors, inaccuracies, or omissions in relation to services, pricing, locations, descriptions, information, and other matters. Fusion Fitness reserves the right to correct any errors, inaccuracies, or omissions and to discontinue, change or update information at any time without prior notice. If Fusion Fitness discovers price errors, they will be corrected on Fusion Fitness’s systems, and the corrected price will apply to your order.
Disclaimer of Warranties
YOU ACKNOWLEDGE, BY YOUR USE OF THE SITES, THAT SUCH USE IS AT YOUR SOLE RISK.
Limitation of Liability
IN NO EVENT SHALL EITHER FUSION FITNESS OR ITS AFFILIATES, FRANCHISEES, OR AGENTS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITES OR THE SERVICES AVAILABLE THROUGH THE SITES, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
Certain state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above disclaimers, exclusions, or limitations may not apply to you, and you may have additional rights.
Under no circumstances whatsoever shall Fusion Fitness’s aggregate liability resulting from or relating to your use of the Sites exceed Five Dollars ($5.00).
Prohibited Activities & Visitor Obligations
As a visitor or user of the Sites you shall not:
- Violate any applicable law or regulation;
- Upload, post, use, transmit, or otherwise make available, including by e-mail, (each, a “Post”) any content or information that is false or inaccurate.
- Post any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or content that could otherwise be considered to be objectionable.
- Impersonate or use the identity of another person or organization, or falsely state or otherwise misrepresent your affiliation with a person or organization.
- Engage in any activities or manipulate identifying material to misrepresent the origin of content.
- Post any content that is subject to any disclosure restrictions.
- Post any materials, items, information or content that infringes or otherwise violates any patent, copyright, trademark, or any other intellectual property rights.
- Post any unsolicited or unauthorized advertising or promotional materials, including without limitation, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation.
- Use the Site to disseminate any information or content, including by e-mail, that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or information or content that could otherwise be considered to be objectionable.
- Post any material that contains software viruses or any other corrupt computer code, files or programs that impair the use of any computer software or hardware or telecommunications equipment.
- Interfere with or otherwise limit the use of the Sites by other users; or collect, compile, or store personal information about other users of the Sites.
- Disrupt or interfere with the operation of the Sites by overloading or exceeding the capacity of the Sites or the systems resources; accounts; usernames and passwords; servers; or networks connected to or accessible through the Sites or any affiliated or linked sites.
- Disrupt or interfere with the security of, or otherwise cause harm to, the Sites or the systems resources; accounts; usernames and passwords; servers; or networks connected to or accessible through the Sites or any affiliated or linked sites.
- Use any robot, spider, other automatic device, or manual process to “screen scrape,” monitor, “mine,” or copy the web pages on the Sites or the content contained therein without Fusion Fitness’s prior, express, and written permission.
- Use the Sites for commercial purposes.
limited period of time, as determined by Fusion Fitness in its sole discretion. You are solely responsible for creating backup copies and replacing any of your User Content at your sole cost and expense.
By the Post of User Content to the Sites, you represent and warrant that
- The User Content is non-confidential is not subject to disclosure restrictions under any applicable data privacy laws or regulations.
- The User Content is accurate and not misleading or harmful in any manner.
Links to Other Web Sites
If you are a registered user of any of the Sites, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. Fusion Fitness reserves the right, without notice and in its sole discretion, to refuse or restrict access or service, terminate accounts, or remove or edit content.
You authorize Fusion Fitness and any payment processing service provider it may engage to charge your credit card, or to debit or process payment through any other offered means, for any products or services you purchase through your use of the Sites. You represent and warrant that you are the only one who will make payments in connection with the Sites, and you shall be responsible for any and all uses of your credit card, debit card, or any other payment means used in or under your name. Unless otherwise specified, any amounts paid to Fusion Fitness are nonrefundable.
Employees, Trainers or Other Contractors
You are responsible for compliance with applicable laws.
Any and all questions, comments, suggestions, and similar materials or information that you send or submit to Fusion Fitness or a third party provider on the Sites, by a Post or otherwise (collectively, “Submissions”), shall become Fusion Fitness’s property; and you hereby transfer, sell, and assign to Fusion Fitness all of your right, title, and interest in and to any such Submissions, including without limitation, any and all related patent, copyright, trademark, and other intellectual property rights. Fusion Fitness has no obligation of any kind whatsoever to maintain any confidentiality with respect to any such Submissions. Fusion Fitness shall be free to use them for any purpose whatsoever without providing you notice or receiving your consent, and without restriction or compensation.
- Any dispute, controversy, or claim arising out of or relating to your relationship with Fusion Fitness, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory and expressly including any claims for violation of any state consumer protection act or the federal Telephonic Consumer Protection Act or any state or international law equivalents (collectively, “Claims”), shall be resolved by binding arbitration. The sole exception is that you and we retain the right to pursue in small claims court any Claim that is within that court’s jurisdiction and proceeds on an individual basis. Aside from this sole exception, all other Claims must be resolved by binding arbitration pursuant to the terms set forth below.
- The arbitration shall be administrated by the American Arbitration Association or its successor (“AAA”) in accordance with its Consumer Rules or any other applicable AAA rules. (The AAA’s Consumer Rules are available at https://www.adr.org/Rules). To the extent there is a conflict between this arbitration provision and the AAA’s Consumer Rules, the arbitration provision controls. In the event that the AAA is no longer in business, then the parties will attempt to agree on an alternative agency. If one cannot be agreed to, then the parties agree that a court of competent jurisdiction may select the arbitration agency for them. The arbitration shall be conducted before a single arbitrator. The arbitration will be conducted in a mutually agreeable location in your state of residence. The decision of the arbitrator shall be final and binding and may be entered as a judgment by any court of competent jurisdiction.
- Before initiating an arbitration, you must first send, by certified mail or a nationally recognized courier service like Fedex or UPS, a written Notice of Dispute (“Notice”) addressed to: Legal Department, 111 Weir Drive, Woodbury, MN 55125 (“Notice Address”). The Notice must (i) describe the nature and basis of the Claim; and (ii) set forth the specific relief sought. If the you and we do not reach an agreement to resolve the Claim within 60 days after the Notice is received, you may commence an arbitration proceeding with the AAA by submitting the Notice of Dispute to the AAA and initiating the arbitration and sending a copy, by certified mail or courier service, of the initiated arbitration to the Notice Address. During the arbitration, other than informing the arbitrator that the Notice was properly provided, no information regarding any settlement offer made by either party shall be disclosed to the arbitrator. Unless prohibited by applicable law, any Claim must be submitted to us in a Notice of Dispute within one (1) year from the occurrence of the facts giving rise to such Claim.
- If the AAA determines that your Claim is part of a filing of multiple or mass case filings, then you agree that the AAA Supplementary Rules for Multiple Case Filings apply and you further agree not to oppose any motion by us for an order requiring you to initially advance all filing fees and arbitrator costs. If you succeed on your Claim in any multiple or mass case filing, the arbitrator may award you costs in any amount that would place you in an equal position as you had been in if you filed your Claim individually.
- Neither party shall pursue any class, collective, or representative claims. Unless the Supplementary Rules for Multiple Case Filings apply, the parties may not consolidate the arbitration with any other proceedings to which we are a party, except for an arbitration in which the parties to this agreement are the sole parties.
- The arbitrator shall be entitled to award injunctive relief, if applicable, specific to you and to award damages. To the extent allowed by applicable law, the parties agree that neither party will be liable to the other (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) for any indirect, special, incidental, consequential, exemplary or punitive damages or for any form of damages other than direct damages. The arbitrator shall award attorney’s fees and costs, including the expenses of thearbitration, to the prevailing party if the arbitrator finds that the non-prevailing party asserted frivolous or bad faith defenses or claims.
- Any award of the arbitrator shall have no preclusive effect in any future proceeding, except any future proceeding in which you and we are the sole parties.
- The Federal Arbitration Act, applicable federal law, and the laws of the state of Minnesota, without regard to principles of conflict of laws, will govern this agreement and any dispute, controversy, or claim of any sort that might arise between us.
- The parties agree that the arbitration proceedings and results are confidential and, except as required by law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration conducted pursuant to this agreement without the prior written consent of the parties.
- For the avoidance of doubt, this agreement applies to Claims involving any of Fusion Fitness’s staff, agents, subsidiaries, affiliates, employees, board of directors, parents, franchisees, predecessors, successors, and assigns, each of which is an intended third party beneficiary of this agreement. This agreement shall survive the termination of any other contractual or non-contractual relationship between us and you, including any membership relationship you may have with a franchisee.
- With the exception of subparts (d) and (e) above (the class action waiver and mass action rules), if any part of this arbitration provision is held to be invalid, unenforceable, or illegal, then the balance of this arbitration provision shall remain in effect and shall be
construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not in it. If, however, subpart (d) or (e) above (the class action waiver and mass action rules) is held to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor us shall be entitled to arbitrate their dispute. If this agreement is found to be unenforceable on inapplicable for any reason, including because the class action waiver is found invalid, unenforceable, or illegal, then the sole and exclusive venue for the resolution of any Claim shall be the United States District Court for District of Minnesota or, if there is no federal jurisdiction over the action, in the courts of the State of Minnesota located in Minneapolis. Further, you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such Claim that is determined not to be subject to the arbitration provision.